Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Thursday, November 14, 2019

"Digital Public Commentary": A New Rhetoric for Lawyers?

Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law—exploring ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.

After a hiatus, the Rhaw Bar is back to explore lawyer digital public commentary and raise some initial questions about lawyers engaging in digital rhetoric.

In Formal Ethics Opinion No. 480, issued in the Spring of 2018, the American Bar Association Standing Committee on Ethics and Professional Responsibility considered for the first time how a blogging lawyer must treat the confidentiality of client information. In deciding that the confidentiality rules applied to internet blogging, the Committee identified a category of lawyer speech it called “communicat[ion] about legal topics in public commentary.” The Committee recognized that while lawyers have historically “comment[ed] on legal topics in various formats” through “educational programs” and “articles and chapters in traditional print media such as magazines, treatises, law firm white papers, and law reviews,” the “newest format [for comments] is online publications such as blogs, listserves [sic], online articles, website posting, and brief online statements such as microblogs (such as Twitter®).” The Committee said that “[o]nline public commentary provides a way to share knowledge, opinions, experiences, and news.” 

Although the point of this opinion was not necessarily to identify a new cateogry of legal writing but instead to warn lawyers that their obligations of confidentiality extend to their non-client-centered public speech, the opinion has the secondary effect of raising two questions.  First, is a lawyer's digital public commentary a unique genre of legal writing?  And, if it is, what are the rhetorical possibilities for and problems of this form?

I'm going to make the case that writing public commentary--whether digital or not--is a unique genre of legal writing.  First, writing public commentary to influence thought and discourse on legal topics is decidedly less client-centered than other, more traditional forms of legal writing.  Writing public commentary is more connected to the lawyer's role as a "public citizen with a special responsibility for justice" than it is to the lawyer's role as a representative of clients.  Both of these roles are identified (along with others) in the Preamble to the Model Rules of Professional Conduct (most if not all states have adopted the Preamble's language). 

Second, the idea of the lawyer speaking publicly is implicit in what the Preamble says about the lawyer-as-citizen role.  The Preamble directs that “a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law[,] and work to strengthen legal education.” The Preamble further offers that a lawyer should “further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.”  Both of these activities--cultivating knowledge and furthering public understanding--require communication with the public, not exclusively with courts, clients, or opposing parties in private and semi-private transactions. And if the public is now digital, it makes sense for the lawyer to communicate with that audience digitally.

So, I think the Committee was right to expressly identify "public commentary" as something different from the other forms of writing lawyers do.  And although lawyers making public commentary is an old phenomenon, the Committee rightly recognized that the "digital" is new.  

The digital information and arguments lawyers present to the public about legal matters of collective concern are a form of  "digital rhetoric," rhetoric that is electronic or computerized.  While digital rhetoric has characteristics in common with other forms of rhetoric, it also has some unique features.  Two of those features are circulation and fragmentation. 

Circulation refers to the way a message moves from audience to audience across space and time.  The rapid velocity at which messages circulate is perhaps the defining characteristic of the digital environment. In the past, messages had to be shared face-to-face or through print documents physically sent from one person to another. (Think of the idea of the "circulation" of a newspaper, referring to the measurement of how many readers a newspaper had.)  Message circulation increased and accelerated with television and radio.  But, even then, gatekeepers controlled the amount, speed, and movement of information via those media.  With the internet, however, both the speed and range of message circulation has increased again.  That is, a message can find itself instantly anywhere in the world, be subject to minimal gatekeeping (at least in free societies), be seen by limitless audiences, and be responded to by those audiences instantaneously.

Fragmentation means that a digital message can be broken into smaller pieces and those fragments can be reused, repurposed, or reformed in other digital messages.  That is, when composing messages in and for internet spaces, the resources of invention come not only from one's own internal thoughts but also from mixing and remixing what can be found in other messages already in circulation.  In the digital world, fragmentation is more common and more frequent than with messages that appear in print, for example.  This means that online speakers and audiences have more resources for thought and argument than in other contexts but at the same time may face more difficulty in making sense of messages that have been mashed and mixed in ways not originally anticipated.

So, if lawyers’ online public commentary is both a unique genre of legal writing and a digital rhetoric, what questions might we ask about the challenges and opportunities digital legal commentary presents?  

First, we might ask questions about the resources available to lawyers in the digital space.  What methods and sources, unique to digital rhetoric, are available to lawyers who want to be commentators in digital spaces?   Are/should any of those methods be ethically off limits to lawyers?  Conversely,  how might we adapt traditional rhetorical resources and approaches to apply to digital public commentary about the law?  For example, how do our traditional ideas about effective organization, style, and delivery apply in the digital space?  

Second, we might ask questions about the quality of lawyers’ messages and the risks posed by message fragmentation and rapid circulation.  What concerns for accuracy and influence of the lawyer's message do rapid circulation and fragmentation present for the lawyer?  Is misuse and misinterpretation of message fragments inevitable?   If a lawyer's commentary on a legal issue is broken apart and is re-used in ways the lawyer did not foresee, what are the ethical and rhetorical implications for the lawyer?  How do lawyers influence the limitless audiences that may encounter all or fragments of the lawyer's message?

Finally, we might ask questions about the a lawyers' duties in the context of digital rhetoric.  If lawyers are supposed to be public-citizens educating the public on legal issues, do lawyers have an obligation, not just an opportunity, to use digital rhetoric for this purpose? Must lawyers be rhetorically "competent" in digital public commentary, and, if so, what does fulfilling that duty look like?  

These questions demonstrate that the digital space presents new challenges and opportunities for lawyers as well as new ways of thinking about what what forms of persuasion are effective and appropriate for legal commentary in a digital world. These questions are worth thinking (and writing) about as digital communication spaces become even more prevalent and lawyers participate in them more.  Your thoughts are welcome in the comments below.

Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at kkdavis@law.stetson.edu.

 

November 14, 2019 in Legal Ethics, Legal Profession, Legal Writing, Rhetoric, Web/Tech | Permalink | Comments (0)

Saturday, November 2, 2019

AI and Free Legal Research, Annotated

   Fall is in the air (well, maybe not here in Los Angeles), and that means we are in the part of the 1L year when many law students across the country are doing their first in-depth legal research.  Thus, we are also at the time when many writing professors, like me, are looking for a great list of new, preferably free, AI research tools.  Our students see plenty of services affiliated with the legacy databases, but too many do not learn much about the world beyond Lexis and Westlaw, except possibly GoogleScholar.  As new lawyers, especially if they start in small or solo practices, they will need access to free tools. 

   Similarly, appellate practitioners with firm or agency affiliations might have access to Casetext, which will scan briefs and suggest missing case authority, Ravel (now part of Lexis), which uses AI to create “case law maps,” Fastcase, and more.   Some solo practitioners, however, cannot afford even the lower-priced Casetext, and need free AI assistance.  See generally Tom Goldstein, SCOTUSblog is partnering with Casetext, SCOTUSblog (Feb. 28, 2019, 12:00 PM), partnering-with-casetext (noting benefits and low cost of Casetext).

   There are many excellent lists and comparisons of fee-based (and even some free) AI programs for law firms, far beyond the early comparisons of document scanners for discovery.  See, e.g., Jan Bissett and Margi Heinen, EVOLVING RESEARCH:  Habits, Skills, and Technology, 98 Mich. Bar. J. 41 (May 2019); https://www.lawsitesblog.com.  For free AI services, however, some excellent explanations are in the amicus briefs in Georgia v. Public.Resource.org, Inc., 906 F.3d 1229 (11th Cir. 2018), cert. granted, __ U.S. __, 139 S. Ct. 2746 (June 24, 2019). 

   In Georgia v. Public.Resource.org, the Eleventh Circuit ruled the state-created annotations to Georgia’s statutes are not protected by copyright law, and reversed summary judgment for the State on its copyright claims against a public interest provider of free legal content, Public.Resource.org.  According to the Eleventh Circuit, the annotations to the Code were “created by Georgia’s legislators in the exercise of their legislative authority,” and therefore “the people are the ultimate authors of the annotations.”  Id. at 1233; see Jan Wolfe, U.S. High Court to Rule on Scope of Copyright for Legal Codes, June 24, 2019, Wolfe.  The United States Supreme Court will hear argument in Georgia v. Public.Resource.org in December, and could rule that no state can copyright annotated statutes, opening the door for more AI content creators to provide annotated statutes online. 

   Many of the amicus briefs in support of Respondent Public.Resource.org explain the need for free access to statutes and other legal documents among law students, scholars, solo attorneys, and visually impaired counsel.  See https://www.scotusblog.com/case-files/cases/georgia-v-public-resource-org-inc/.  A great many of the amici are, themselves, providers of free AI research, and their briefs give the excellent lists of resources I mentioned. 

   For example, in their brief supporting a grant of certiorari, Next-Generation Legal Research Platforms and Databases describe themselves as:  “[N]onprofit and for-profit creators and developers of next-generation legal research platforms that provide innovative tools and services for the legal community and the public. These tools serve the public interest by dramatically transforming the ways in which the public, courts, law firms, and lawyers access, understand, and utilize the law.”  Next-Gen. Lgl. Res. Platforms, ACB.  In addition to the for-profit AI services like Ravel and Casetext, the brief’s amici include these three providers:

(1)  “Amicus Judicata ‘maps the legal genome’ and provides research and analytic tools to turn unstructured case law into structured and easily digestible data. Judicata’s color-mapping research tool fundamentally transforms how people interact with the law: it increases reading comprehension and speed, illuminates the connections among cases, and makes the law more accessible to both lawyers and nonlawyers.”  Judicata has free and subscription-based services.

(2) “Amicus Free Law Project is a nonprofit organization seeking to create a more just legal system. To accomplish that goal, Free Law Project provides free, public, and permanent access to primary legal materials on the Internet for educational, charitable, and scientific purposes. Its work empowers citizens to understand the laws that govern them by creating an open ecosystem for legal materials and research. Free Law Project also supports academic research by developing, implementing, and providing public access to technologies useful for research.”

(3) “Amicus OpenGov Foundation produces cutting-edge civic software used by elected officials and citizens in governments across the United States. The Foundation seeks to ensure that laws are current, accessible, and adaptable. Everything the Foundation creates is free and open source, allowing the public to use, contribute to, and benefit from its work. Its software, coalition-building activities, and events are designed to change the culture of government and boost collaboration between governments and communities.”

   I plan to share these three resources with my students, and to encourage them to watch Georgia v. Public.Resource.org and stay abreast of other developing AI platforms.  I hope these sources are helpful to you as well.  Happy research, everyone!

November 2, 2019 in Appellate Justice, Appellate Practice, Law School, Legal Profession, Legal Writing, United States Supreme Court, Web/Tech, Weblogs | Permalink | Comments (0)

Saturday, October 19, 2019

Blackbeard, Allen v. Cooper, and Research via Public Depositories

    This term, SCOTUS will hear a sovereign immunity case involving Blackbeard’s sunken pirate ship.  In Allen v. Cooper, 18-877, the Court will address whether Congress validly abrogated state sovereign immunity in the 1990 Copyright Remedy Clarification Act (CRCA) by providing remedies for copyright holders when states infringe their federal copyrights. 

    Why does this matter to appellate advocacy, aside from the obvious fun of saying “Aaarrr!” when discussing an Eleventh Amendment case?  The case could impact the scope of free access researchers and appellate practitioners have to online materials.  In fact, while the case raises deep concerns for intellectual property creators, it also shows the increasing push by States to make images and documents available to the public at libraries and universities, and to preserve historic materials digitally.

    In 1718, Blackbeard’s Queen Anne’s Revenge ran aground a mile off the coast of what is now called Beaufort, North Carolina.  Legend says her captain and crew immediately transferred all treasure to smaller ships, and the Revenge remained underwater for over 200 years.  According to the Fourth Circuit’s opinion in Allen v. Cooper, 895 F.3d 337, 343 (4th Cir. 2018), in 1996, a private research and salvage firm operating under a permit issued by North Carolina discovered the wreck of the Revenge.  The researcher hired Petitioner, Frederick Allen, to document the shipwreck.  Id.  Allen obtained the rights to create video footage and photographs of the Revenge with another permit issued by North Carolina, and Allen registered his work over the next 13 years with the U.S. Copyright Office.  Id. at 342, 344.

    At some point, North Carolina posted pieces of Allen’s copyrighted works on State websites and in a State publication.  The State and Allen settled copyright claims from these postings, and the State agreed not to use Allen’s commercial copyrighted material in the future.  Id. at 344-45.  Nonetheless, the State soon published more of Allen’s Revenge video and images online, and then the North Carolina Legislature passed “Blackbeard’s Law,” which converts many of Allen’s images to the public record.  See id. at 342; N.C. Gen. Stat. § 121–25(b) (2015) (providing that photographs and video recordings of shipwrecks in the custody of North Carolina are public records); Amy Howe, Justices grant three new cases, SCOTUSblog (Jun. 3, 2019, 12:16 PM), https://www.scotusblog.com/2019/06/justices-grant-three-new-cases/.

    Allen sued North Carolina for copyright infringement and for a declaration that Blackbeard’s Law is unconstitutional.  The state moved to dismiss on the grounds of sovereign immunity, and Allen argued the CRCA abrogated North Carolina’s immunity.  The district court ruled for Allen, but the Fourth Circuit reversed, holding Congress acted improperly in enacting the CRCA.  Allen, 895 F.3d at 342-43, 350-53.  The Supreme Court granted cert, and will hear the case on November 5.  https://www.scotusblog.com/case-files/cases/allen-v-cooper/.

    Over twenty amici have filed briefs.  Amici in support of Allen make excellent arguments in favor of strengthening IP protection and maintaining the remedies provided in the CRCA.  For example, Oracle, the Software & Information Industry Association, and a group of prominent law scholars have each filed briefs contending Congress properly protected IP rights and innovation in the CRCA.  Oracle ACB, 2019 WL 3828598; SIIA ACB, 2019 WL 3814393, and Scholars ACB, 2019 WL 3828597.  These briefs stress the need to protect inventors and innovators from state action and potential wholesale public adoption of their copyrighted property.

    On the other hand, amici in favor of North Carolina argue copyright holders have remedies aside from the CRCA.  The also claim abrogating immunity will limit the public’s access to documents at public university and government research libraries.  The American Library Association and others stress that public archivists need protection for their large-scale, costly digitization projects to create open access and to save documents of historical significance.  ALA ACB, 2019 WL 4858292.  Similarly, a group of public universities note they are acting in the public interest to promote “education, research and community engagement” when digitizing documents and already carefully respect copyrights.  Public Universities ACB, 2019 WL 4748384.

    Whatever the outcome of these arguments, our appellate community should keep an eye on this case.  Not only does it offer pirate fun, but it presents serious issues of property rights and public access to research materials.

October 19, 2019 in Appellate Advocacy, Appellate Practice, Current Affairs, United States Supreme Court, Web/Tech | Permalink | Comments (0)

Monday, October 7, 2019

Grammar, Memes, and the Law

I love a good meme.  Make it a good grammar, writing, or editing meme and I am in law professor meme heaven.

Not long ago one of my Facebook friends started sharing the funniest grammar memes (or maybe she had been sharing them all along, but Mark Zuckerberg finally thought I should start seeing them).  Regardless, I was hooked and followed the clicks through to the main Facebook page of Analytical Grammar.  The company also has a website.

What I have loved about the Analytical Grammar memes is that they explain often misused words.  For example, check out this meme (which I share with permission!):

No photo description available.

I shared this meme on my Facebook page and several of my friends found in informative.  I also like that if you click to Analytical Grammar's Facebook page, there is a short text description of the meme and the proper word usage.  

I could share a lot more of the Analytical Grammar memes--they are delightful--but I want to get to the rest of the story.  When I clicked over to the Analytical Grammar Facebook page, I was struck by the cover photo.  It contains a few images and the following text: "This page is run by an Air Force reservist and small business owner, and the business is being SUED for sharing a viral meme. For the full story, documentation, and other info, go to this link: www.gofundme.com/analyticalgrammar." Naturally, I went to the GoFundMe page for more information.

Apparently, Analytical Grammar shared a viral picture of a visual pun. The pun went viral from its site too.  That was in December 2017.  Almost two full years later Analytical Grammar was sued in federal court by the man who said he created the meme.

According to the complaint (in a nutshell), the plaintiff took the photograph and copyrighted it.  He claims that Analytical Grammar ran the photo without permission or a license.  He also seems to claim that Analytical Grammar removed "copyright management information."  He asks the court for actual damages, profits Analytical Grammar received from the infringement, attorneys fees, and punitive damages.  Wow!

Analytical Grammar's answer and counterclaims is pretty awesome.  In a delightful play on words (since the original photo was of several levels), it states;

Bradley’s lawsuit is wrong on so many levels. He levels claims against Analytical for sharing his joke. He does his level best to take Analytical down a level. But his claims are not on the level. Analytical raises these counterclaims to level the field.

It recounts the history of the photo, which wasn't even copyrighted until 2018, (even I was able to look that up on Copyright.gov) after the photo had risen to Internet fame, much to the plaintiff's delight.

Analytical Grammar raises several counterclaims too: (1) invalidity of copyright, (2) declaratory judgment of non-infringement of copyright, and (3) declaratory judgment of non-removal of copyright management information.

I was struck by this case. I often share memes on Facebook.  I see others share memes on Facebook.  I "like" shared memes on Facebook.  Not once did I ever think about copyright when doing any of those things.  I imagine that I am not alone in that regard.  I will certainly be watching this case as it moves through the federal district court in North Carolina.  Good luck Analytical Grammar!

October 7, 2019 in Current Affairs, Web/Tech | Permalink | Comments (1)

Saturday, September 21, 2019

An Old Resource Is New Again—Searchable "Constitution Annotated" Now Online

Since 1913, the Library of Congress has provided a resource for Constitutional scholars, practitioners, and the public, The Constitution of the United States of America: Analysis and Interpretation, generally known as The Constitution Annotated.  According to the Library of Congress, the "Constitution Annotated has served as the authoritative source for the American public to learn about the nation’s founding document alongside Supreme Court decisions that have expounded upon and refined it."  The Constitution Annotated thus "provides a comprehensive overview of how the Constitution has been interpreted over time."  https://constitution.congress.gov/about/

The Constitution Annotated is a wonderful resource to be sure, as it includes over 2,700 pages of annotations based on SCOTUS opinions and many "plain English" explanations for non-lawyers.  The Constitution Annotated also includes helpful tables on the Justices, opinions overruled, and laws held unconstitutional. 

Unfortunately, when the only way for most of us to access this resource was in hard-bound versions published every 10 years for Congress, its use was limited.  Moreover, while the Library eventually made The Constitution Annotated available online, it did so only as large, non-searchable PDFs on its website and through a clunky app for Apple only.  On the other hand, for many years the Library provided Congressional staff an internal, fully-searchable digital version of The Constitution Annotated, including separate webpage sections for each chapter, notes on founding documents, and links to historical and contextual materials.

In a Constitution Day 2019 letter to the Library about The Constitution Annotated, Senators Angus King and Rob Portman explained:  “Unfortunately, the public facing version is not . . . lucid.”  The Senators noted the 2013 iPhone app, like the Library of Congress public website, displayed "a document longer than the average Bible" as "a slew of PDF pages" that are "impossible" to read "on a phone’s tiny screen."  The Senators quoted Thomas Jefferson’s belief every American has an obligation "to read and interpret the Constitution for himself," and urged the Library to make the Congressional portal version available to the public.  Specifically, they asked for "a continuously updated structured data file, such as the XML format in which it is prepared, [to] empower researchers and students."  https://www.king.senate.gov/newsroom/press-releases/to-honor-constitution-day-king-urges-library-of-congress-to-make-constitution-annotated-available-to-all-americans.

Shortly after the Senators sent their letter, the Library launched a new website for The Constitution Annotated.  While still a work in progress, the new constitution.congress.gov includes many of the searchable and user-friendly features the Senators requested.   On the updated site, the Library also explains it will be making more changes in the coming months, as part of a “multi-year project to modernize the Constitution Annotated . . . to better enhance its educational value to a broader audience and to reflect the most recent Supreme Court terms.”

Now, visitors to the site will see separate links for The Annotated Constitution chapters and searchable databases of annotations and opinions.  Moreover, the pages are integrated nicely with the Library’s other resources.  For example, the homepage has links to interesting material like PDFs of George Washington’s handwritten letters, documents from the Constitutional Convention, and Congressional Research Service bulletins on current areas of debate in Constitutional law.

For anyone practicing or writing about Constitutional law, as well as students of our Constitution--young or less young--this site is a nice resource.  Hopefully, the continued updates will be quick and helpful as well.  Enjoy this updated spot for SCOTUS opinions, annotations, and historical documents.

September 21, 2019 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Profession, Legal Writing, United States Supreme Court, Web/Tech | Permalink | Comments (1)

Wednesday, May 29, 2019

Larsen & Fisher on Virtual Briefing at the Supreme Court

Can-chat-chatting-362

So let's say you've just presented an oral argument to the United States Supreme Court. You had 30 minutes, and the questioning was heavy and dominated by justices who seemed determined to advocate against your client's position. Naturally, then, you didn't get to press every point you wanted to at the podium. What do you do? The answer, generally, is not to file a supplemental brief laying out what you woulda coulda shoulda said; Supreme Court Rule 25.7 prohibits post-argument briefing without leave of the Court, and having a way-homer moment typically won't cut it. How about this, though: go on a podcast devoted to the workings of the Court. Talk about the "cool stuff" you had "in the can" that you didn't get to at oral argument. Figure that, perhaps, Court insiders are listening. 

This is one piece of the phenomenon of "virtual briefing," the topic of a thoughtful forthcoming article in the Cornell Law Review by Jeffrey L. Fisher of Stanford Law School and Allison Orr Larsen of William & Mary Law School. Professors Larsen and Fisher trace the rise of virtual briefing—which they define as "online advocacy ... targeted at cases pending at the Supreme Court and outside of the normal briefing process"—as blogs and podcasts devoted to the work of the Court have proliferated. And they offer tantalizing evidence that virtual briefing might be reaching key players at the Court and influencing outcomes. #LawTwitter is mildly atwitter today about the piece's analysis in section II.A of SCOTUS clerks' Twitter habits: some 37 percent of clerks in the 2017-18 and 2018-19 terms had identifiable accounts, and 84 percent of these followed the accounts of podcasts, blogs, and other sources of virtual briefing. And section II.C of the piece presents anecdata about cases where virtual briefing appeared to make a difference. The piece's assessments of the issues raised by the phenomenon and possible paths forward are thorough and thought-provoking. 

May 29, 2019 in United States Supreme Court, Web/Tech | Permalink | Comments (0)

Tuesday, May 28, 2019

Getting to Know Your Audience

Lets harmonize

In my last post I talked about the importance of tailoring your arguments to your panel. This week, I want to provide some practical advice on how to get to know your justices.

The first step is to know what they have written on in relation to your case. Most likely, you are already doing this as part of your legal research. Taking the time to take notes and reference authoring or dissenting justices will let you know if one of your justices has written on your issue in the past, and the approach they have taken to similar types of analysis.

This step should be a starting place for your analysis, not an end-point. As discussed earlier, judges are people, too, and their prior opinions may give you the “what” of their past reasoning, but not necessarily the “why.” To figure that out, you have to go a bit deeper.

There are a dizzying array of resources available for that task. Be aware that some are put together with particular social agendas in mind, or based on a particular experience with a judge, and are thus likely slanted one way or another. Recourse to several tools or sources is thus necessary to get a complete picture. These resources include:

In addition to these online nationwide resources, you can also find background information in court biographies, state and local bar association websites, campaign websites (for those judges who are elected or retained by vote), social media websites, news outlets, and by simply “Googling” the judge. Offline, don’t forget your own network of peers who will have insights based on their personal experiences.

When you have looked over these resources, you will have a better idea of what makes your particular judge or panel of justices “tick.” You can then tailor your argument to their life experiences in a way that will help them better understand your case. Be sure to stay mindful about the proper ways to do so, as discussed earlier.

If you know of a good resource that I did not list, please let me know.

(Image credit: Gene Elderman, Washington Post, January 7, 1937)

May 28, 2019 in Appellate Advocacy, Appellate Practice, Legal Writing, Oral Argument, Rhetoric, State Appeals Courts, Web/Tech | Permalink | Comments (0)

Thursday, February 7, 2019

Should PACER be free?

A suit pending appeal in the Federal Circuit Court of Appeals is asking for an end to administrative fees for accessing documents filed in the federal courts. Public judicial documents are located in the electronic database, Public Access to Court Electronic Records system, or PACER. Anyone can access the system, but there is a fee of 10 cents per page. 

The E-Government Act of 2002 authorized the judiciary to charge PACER access fees, but the fees were limited to "the extent necessary" to provide access to these records. At 10 cents per page, it may seem minuscule in the abstract, but when looking at the actual intake PACER has had, there are legitimate questions about whether this charge is exorbitant. For an example, even though PACER cost $3 million to operate in 2016, it brought in over $146 million in fees. For anyone who's had to navigate the clunky interface that reminds a user of the nostalgia of how the internet used to work, it would not be unreasonable to wonder where all that money is going. 

The lawsuit brought against the United States by National Veterans Legal Services Program, the National Consumer Law Center and the Alliance for Justice asks exactly that - where is this money going? 

From 2010 to 2016, the federal courts collected $920 million in Pacer fees. During that period, the judiciary spent about $185 million of the money on courtroom technology, and millions more on other projects, including $75 million for automated notices to creditors in bankruptcy cases.

While those expenditures seem in line with the dictates of the law, the trial court found not all of them to be appropriate. Both sides are appealing this decision.

To go further, a group of retired federal judges have filed an amicus brief substantiating their position that PACER should be free. Judge Posner is among the amici.

In a friend-of-the-court brief filed earlier this month, they argued that PACER should charge no fees at all, citing the need for judicial transparency and the benefits for researchers, journalists, and prisoners who represent themselves in court. “Given the public’s strong interest in accessing court records, the judiciary should bear the cost of PACER’s operations,” the brief said. “This is consistent with the courts’ longstanding tradition of providing free access for all who come into the courtroom.”

Without having knowledge and information about the expenditures or the entire budget allotted to the federal judiciary it's hard to say whether the money collected via PACER is in compliance with the law or whether it is being wisely spent. However, the unexplained lack of attention to bring the PACER system into the year 2019, sure seems to indicate that the judiciary should try filing some documents in order to gain a perspective for those on the other side of the bench. They may have a new appreciation for techie upgrades!

February 7, 2019 in Appellate Practice, Web/Tech | Permalink | Comments (0)

Wednesday, February 6, 2019

US Reports the easy way

DyG7jQTVYAAm8jqThe official U.S. Reports versions of Supreme Court opinions have been online for a long time. Seriously: all you need to do is cruise over to the Library of Congress's site, do some scrolling and some clicking to hunt down the volume you need, then do some more clicking and some more scrolling to get to case you need. Or, for relatively recent cases, you can go to the Supreme Court's site and do a slightly less elaborate click-and-scroll dance.

It's as tedious as it sounds.

That's why I'm celebrating scotuslink.com, a nifty little online service from Orin Kerr and a dev who goes by the Twitter handle of birds five underscores (@birds_____). The concept is simple: you go to the site, plug in the U.S. Reports citation, and get routed to a PDF copy of the case. The service generates the snarly URI required to get where you need to go in the LoC or SCOTUS catalogs. No searching or scrolling required. I've found it a big time/aggravation-saver for cite-checking and for diving into oldies like Chisholm v. Georgia

A nice bonus: the design and code are great: simple, clean, and thoughtful.

Dive in.

February 6, 2019 in United States Supreme Court, Web/Tech | Permalink | Comments (1)

Thursday, May 10, 2018

Thinking Thursdays: Two-spacers, please stop being so selfish

 

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

The big news this week in field of law and typography[1] was a Washington Post story about a study that purports to settle the one versus two-space controversy that rages on appellate-minded websites, listservs, Facebook pages, and Twitter accounts. Even on this Appellate Advocacy Blog, editor Tessa Dysart chimed in earlier this week. For those of you who are two-space fanatics, I am going to do more than repeat what you may have already heard, i.e. that the study is deeply flawed (although I will quickly review it). Mostly, I am going to suggest that you reflect on your dry, compassionate-less soul and then put down your personal preferences to instead be a citizen of the world.

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But before I continue along these lines, I want to reiterate the scientific flaws in the study that have been ably and articulately pointed out by the best typographer and design expert in law—Matthew Butterick. I have had the pleasure of presenting with LWI Golden Pen recipient Matthew Butterick, and I know that when he writes something, he’s carefully researched and analyzed it first. Right away, Butterick calls attention to the central flaw of the study. It was done using the monospaced (typewriter-like) typeface of Courier, which is still required by the upper courts of New Jersey. To try and shake loose the New Jersey committee overseeing court rule changes, I researched the educational and cognitive science of readability and in 2004 published Painting with Print: Incorporating Concepts and Layout Design into the Text of Legal Writing Documents. The New Jersey officials were not persuaded but other courts were, and the article appeared by invitation on the 7th Circuit’s website for twelve years.

Because it is a monospaced typeface, two spaces must appear at the end of each sentence. Otherwise it is too difficult to determine whether there has actually been a break in the prose. But people don’t use typewriter fonts when they have the choice to use a proportionally spaced one such as the one you are reading right now. And there’s a reason for that. Courier, and typefaces like it, are 4.7% more difficult to read than proportionally spaced type. That equals a slowdown of fifteen words per minute, which Dr. Miles Tinker, the lead psychologist who studied the issue deemed “significant.” In his studies, readers consistently ranked proportionally spaced typefaces ahead of monospaced ones.[2] In other words, the new study is flawed both in using a typeface that people don’t normally choose, and in using a typeface that essentially requires two spaces to be able to discern the difference between the end of a sentence or not. The people conducting the study put the cart before the horse. That’s just poor science.

Now, I promised you a lambasting, and here it is. Two spaces after periods take up more space and for lawyers who find themselves up against a page limit, or who wonder why paper is so expensive, think about whether you can save yourself some space and money by switching over to one space instead.[3] You can also cut down on use of one of the most noxious and wasteful products we use: paper. In this country, paper is the largest source Eagle_Paper_and_Flouring_Mill_Kaukauna edited of municipal waste, and paper creation is the fourth worst industry for the environment. I wrote about this too, in a follow-up article, Conserving the Canvas: Reducing the Environmental Footprint of Legal Briefs by Re-imagining Court Rules and Document Design Strategies. Two spaces after periods actually contribute to the polluting of the environment. Yes, that extra space really does cost something to use.

And, if you are in the Seventh Circuit, you don’t even have a choice. The judges care a great deal about typography and instruct lawyers to use only one space after periods.

Al Gore thumbs up editedSo, there you have it, two-spacers. An inconvenient truth. There’s logos, pathos, and ethos to using only one space. Your preference harms the Earth, eats into your page limits, and costs you and your clients more money to use. The so-called study is junk science. Are there really any justifiable reasons left to continue your inconsiderate punctuation practices?

 

 

 

[1] Sure, that’s a thing, per Derek Kiernan-Johnson

[2] Miles A. Tinker, Legibility of Print 47–48 (Iowa State U. Press 1964) (synthesizing several decades of psychological research on typeface and readability).

[3] There are also other ways to save yourself some money and ecological ruin. When rules don’t require double-spacing: don’t. It’s harder to read anyway. And when courts allow you to use double-sided printing, do so.

May 10, 2018 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts, United States Supreme Court, Web/Tech, Weblogs | Permalink | Comments (0)

Monday, August 14, 2017

Supreme Court to Require E-Filing

The Supreme Court recently announced that on November 13, 2017, its electronic filing system will be up and running. Thankfully, the Court’s program will not be part of the PACER system.  Rather, according to the National Journal, the Court’s main page will include a button for “Electronic Filing.” The filings will be “accessible without cost to the public and legal community.”

While this is a huge step forward for the Court, it will not, initially, eliminate the requirement that parties file paper copies.  According to the Court’s press release,

Initially the official filing of documents will continue to be on paper in all cases, but parties who are represented by counsel will also be required to submit electronic versions of documents through the electronic filing system. The filings will then be posted to the Court’s docket and made available to the public through the Court’s website. Filings from parties appearing pro se will not be submitted through the electronic filing system, but will be scanned by Court personnel and made available for public access on the electronic docket.

E-filing has been around for some time, and is mandatory in most, if not all, federal courts.  It is slowly taking over in the state courts too.  The National Center for State Courts provides information on the state of e-filing in the states, including links to the various court rules.

While e-filing certainly has its strengths, it doesn’t mean that one can procrastinate to file a brief until minutes before it is due.  Be sure to understand the requirements for e-filing in your jurisdiction, including any size limitations and the amount of time it takes to get a login.

August 14, 2017 in Appellate Practice, United States Supreme Court, Web/Tech | Permalink | Comments (0)

Monday, January 19, 2015

Transparency Concern Round-Up

Judicial transparency seems to be a popular issue of late, and I thought I'd pass along some recent news items on the issue.

Public.Resource.Org has a new memorandum regarding the PACER system. Drafted as a "Memorandum of Law" in "The United States Court of Appeals for Public Opinion," the document is a cheeky, well-written explanation of the access problems with the PACER system. The memorandum notes the outdated and rudimentary technical interface, fee and access barriers, and "the almost universal condemnation of PACER from the outside world." It suggests a "national strategy of litigation, supplication, and agitation." The last of these proposes a May 1 day of PACER protest, including various means to bring public dissatisfaction with PACER to the federal courts' attention.

Second, Eric Segall has a post on Dorf on Law examining the U.S. Supreme Court's the Court’s "complete lack of transparency across the range of its official duties." Leading with the example of the court's direct communication with the public timed for 6 p.m. New Year's Eve, the post also examines the courts lack of advance notice of when its decisions in cases will be published, the lack of televised coverage, and other limitations on the Court's transparency.

Third, William Baude has a new piece up on SSRN, Foreword: The Supreme Court's Shadow Docket, which examines "the Court’s shadow docket — a range of orders and summary decisions that defy its normal procedural regularity." Ultimately, after review, Baude concludes, "if there is a problem at the Supreme Court, it may be the opposite of the usual narrative. It is on technical procedural and administrative questions when the spotlight is off that the Court’s decisions seem to deviate from its otherwise high standards of transparency and legal craft." This seems consistent with what Circuit judges and federal court scholars have said for years about unpublished opinions.

 

hat tip on that last item to the Legal Theory Blog.

 

January 19, 2015 in Appellate Court Reform, Appellate Procedure, Current Affairs, Federal Appeals Courts, United States Supreme Court, Web/Tech | Permalink | Comments (0)

Wednesday, September 3, 2014

Judges Reading Appellate Materials on Electronic Devices

There is an interesting post today at Legal Research & Writing Pro Blog about how judges read appellate materials in the ever-expanding age of electronic resources. As the post notes, as federal courts and an increasing number of state courts have moved to electronic filing, judges have also moved toward reading materials, including briefs, on electronic devices such as laptops and iPads.

The post notes that changes in how judges are reading briefs -- from paper to electronic -- comes with a potential for real differences in impact.  There are studies suggesting that readers tend to skim electronic materials more than they do paper materials, but also that active engagement with the electronic material can substantially improve comprehension.

As the post suggests, there are also some potential new advantages to the prevalence of electronic resources in appellate practice.  Citations can be hyperlinked to research sources so that judges can quickly and effectively jump right to the authority; similarly, annotations to the appellate record can be hyperlinked to the relevant part of the record in jurisdictions that have invested in the necessary software. An April post on Cite Blog included thoughts about those kinds of hyperlinks.

A couple of years ago I presented at a symposium at Washburn Law School where there was a presentation from an attorney who did a great deal of practice in various federal courts across the country.  He talked about embedding digital information in briefs, including hyperlinks to video excerpts from video depositions, hyperlinks to exhibits, etc., in addition to the more conventional hyperlinks that could appear to authorities.  It certainly seems that the continuing development of digital practice would point to a future with vast opportunity to connect the appellate materials in profound ways.

For some additional thoughts, see a post from back in January over at Volokh Conspiracy, with additional discussion in the comments.

Thoughts?  Is the increased use of digital resources by courts impacting the way you present arguments in your appellate briefs?  Have you seen this as a good development, or one with significant pitfalls?  And is legal education keeping up with these kinds of trends?  Share your thoughts in the comments!

September 3, 2014 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Profession, Legal Writing, State Appeals Courts, Web/Tech | Permalink | Comments (1)

Thursday, June 12, 2014

Clever Code Catches Changes

Following the Adam Liptak piece on Professor Richard Lazarus' new study, that I mentioned in my last post, a clever coder has developed a way to monitor, identify, and publicize any changes to U.S. Supreme Cout opinions. David Zvenyach, general counsel to the Council of the District of Columbia, has launched @SCOTUS_servo, to help identify any changes. The Twitter feed reports the result of comparison of the prior verison of court opinions to those now appearing. The code that does this, a crawler, checks every five minutes for a change and makes an automated post to the Twitter account reporting any change that has been made. Zvenyach then makes a manual tweet detailing and highlighting the actual change.

This is a useful service for forcing transparency regardless of how important any individual change might be to the followers of@SCOTUS_servo. More details available at this Gigaom post by Jeff John Roberts.

June 12, 2014 in Appellate Practice, United States Supreme Court, Web/Tech, Weblogs | Permalink | Comments (0)

Sunday, March 23, 2014

Beyond the Record on Appeal

The Sixth Circuit Appellate Blog has an interesting piece on when it's acceptable for advocates and appellate judges to go beyond the appellate record to do internet research (or even live reenactments). I think that all such outside references present a problem, but the issues are different depending on whether the advocates or court is doing the extra-record research. When the parties make extra-record references, those references are subject to the adversarial process. As the Sixth Circuit Appellate Blog post notes, a motion to strike can be considered and pursued or waived depending on the importance of the content and egregiousness of the extra-record reference. When the court does its own research, whether that's internet research or live reenactments, the action is not subject to the adversarial process. A party's only recourse is to seek hearing en banc or Supreme Court cert, both exceedingly rare audiences to obtain.

As outside research becomes easier, particularly through the internet, the boundaries of such research should be carefully considered and enforced.

March 23, 2014 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Federal Appeals Courts, Web/Tech | Permalink | Comments (0)

Monday, February 3, 2014

Torres on Link Rot in the Texas Appeals Courts

Is link rot destroying stare decisis as we know it? That's a great question. If appellate courts are citing to internet sources and those sources are disappearing (link rot), often within just a few years, that does seem to pose a problem for future litigants and courts in determining the basis for the earlier courts' decision.

Arturo Torres, Associate Dean for Library and Information Technology and Professor of Law at the Texas Tech University School of Law, tackled this issue in: Is Link Rot Destroying Stare Decisis as We Know It? The Internet-Citation Practice of the Texas Appellate Courts, 13 J. App. Prac. & Process 269 (2012). The abstract:

In 1995 the first Internet-based citation was used in a federal court opinion. In 1996, a state appellate court followed suit; one month later, a member of the United States Supreme Court cited to the Internet; finally, in 1998 a Texas appellate court cited to the Internet in one of its opinions. In less than twenty years, it has become common to find appellate courts citing to Internet-based resources in opinions. Because of the current extent of Internet-citation practice varies by courts across jurisdictions, this paper will examine the Internet-citation practice of the Texas Appellate courts since 1998. Specifically, this study surveys the 1998 to 2011 published opinions of the Texas appellate courts and describes their Internet-citation practice.

While it appeared in the Journal's Fall 2012 issue, it just popped up on SSRN last month, which makes it current enough to discuss I suppose. The article does a careful and detailed empirical analysis of Texas Supreme and intermediate appellate courts' use of internet citations, citations to publicly available URLs, by court and overall. It then follows up on the internet citations used in these opinions and determines that, of internet citations used in the period between 1998 and 2011, nearly 40% of them no longer function. Table 10 on page 294 documents the link rot year over year, with citations in the late 90s and and early 2000s being mostly non-functional. In addition to documenting the link rot, the article also parses the data in a couple other interesting ways, showing us which courts are more likely to use internet citations and which domains (such as .com, .gov, etc.) are most cited.

In my estimation, the article doesn't really answer whether this admittedly frequent link rot does destroy stare decisis. To answer this question would require examining how the citations were being used and whether their absence affects our ability to understand and apply the cases. The answer may well be "yes," and its a problem that should be addressed regardless, but it may well be that a qualitative analysis of internet citation use proves the loss of these links to be insignificant. For example, if the appellate court gives the substance drawn from the source before citing it, it may often be the court's own adoption or application that matters, and not the availablility of the underlying source. For this or other reasons, link rot may have only a de minimis affect on stare decisis.

Finally, the author's data sorting methodology strikes me as a bit ironic, although this might just be my sensitivity to the issue of unpublished opinions in appellate courts. But given this article's concern with stare decisis, and its conclusion that link rot a priori erodes stare decisis, I was surprised that it completely omits unpublished decisions from the data set. It would seem to me that wholesale elimination of entire appellate opinions (especially in the large volume designated as unpublished) represents a more blatant affront to stare decisis.

 

February 3, 2014 in Appellate Advocacy, Appellate Court Reform, Appellate Procedure, State Appeals Courts, Web/Tech | Permalink | Comments (0)