In my previous post, I introduced the debate concerning the benefits of legal records accessibility on the Web versus suggestions that some records contain personal and confidential information that, perhaps, should not be readily accessible. Today, let's visit the subject of the judiciary's growing reliance on Web resources from Wikipedia to YouTube1 and the accompanying concerns that jurists and legal scholars are beginning to express.
[updated July 10, 2007]
Research by the New York Times revealed more than 100 rulings citing an encyclopedia written by nobody and everybody: Wikipedia. The tally, dating back to 2004, includes 13 from the circuit courts of appeals.
Despite its ranking as among the 20 most popular Web sites, the online encylopedia's reputation suffered when several instances emerged of entries being tampered with by pranksters or containing errors.2 And, although some colleges and professors forbid students from citing Wikipedia as a central source, it has established credibility in some courtrooms, creating controversy with legal scholars, who disapprove of such unreliable sources. In an opinion announced July 2, 2007, Lands Council v. McNair, 07-35000 (9th Cir., July 2, 2007), the Ninth Circuit consulted Wikipedia to evaluate the weight of a secondary authority authored by environmentalist/activist Derrick Jensen. In a 2005 case before the Tennessee court of appeals worth hundreds of thousands of dollars, the site was used to help define the meaning of the word "beverage." English Mtn. Spring Water Co. v. Chumley, 196 S.W.3d 144 (Tenn. App. 2005). It was also cited recently in a federal district court in Florida to offer background on the term "booty music." In one instance (cited by the Times), a decision from a Chicago appeals court cited Wikipedia in a drugs case - even though the judge, Richard Posner, had first-hand experience of its unreliability: an entry claimed the conservative commentator Ann Coulter had been his law clerk. (Judge Posner had never met her).
However, Wikipedia is only the latest in a series of technological features that lend themselves towards unreliability. Another area that I've seen this --one that I specialize in-- is digital briefs: An article, Bradley J. Hillis, Electronic Briefs in Trial and Appellate Courts, (2000), urging the use of digial briefs suggests that they, "may change the way judges analyze legal precedent by encouraging them to go from the case the attorney initially linked to the cases cited in that case, a sort of deeper foundation of the law, or even encouraging judges to search the Web to check factual assertions."
Perhaps. But, what if the site that the link points to is one operated by or prepared by the attorney? How does the judge know if the case presented by a link is, indeed, the actual text of the opinion? How does a judge know if this isn't a way to introduce materials to the court that were not properly preserved in the record on appeal (e.g., a link to an acceptable document but one, that itself, has embedded links to photographs, articles, or other media not admitted into the record)? And, what about the permanency of the links?
Indeed in one digital brief that I recently filed in the Tenth Circuit (a petition for rehearing en banc), I had set up a complete docket of the entire trial court and appeal on a Web site. Every citation in the petition, including some authorities, linked to PDFs on the Web site and, in so doing, was completely within that court's guidelines for hyperlink use within briefs. On the other hand, the Opening Brief and Reply Brief were entirely self-contained briefs on CD-ROM, utilizing Acrobat's destination tool and pointing to PDFs (authorities, trial court filings, etc.) that were on the CD or embedded within the main document.
Concerns of URL permanency have been raised by others, previously: Coleen Barger, an associate professor with the University of Arkansas' William Bowen School of Law, gave a presentation, The Great Disappearing Act: Preserving URLs in Judicial Opinions, to the AALL Annual Meeting and Conference in 2005 and, which was based on her earlier treatise, On the Internet, Nobody Knows You're a Judge: Appellate Courts' Use of Internet Materials, 4 J.App.Prac.&Process 417 (2002). She posed many questions but concluded, ultimately, that "Too many recent opinions rely upon questionable or non-available sources, and such misplaced reliance certainly cannot be what judicial authors wanted or intended. Id. at 419.
Professor Michael Whiteman, an associate professor of law and associate dean for law library services and IT at the Chase College of Law, addressed related issues in Appellate Court Briefs on the Web: Electronic Dyamos or Legal Quagmire?, 97 Law Libr. J. 467 (2005). In his treatise, he enumerates many of the benefits to both lawyer and jurist of digital briefs and e-filing, yet points out that, "Ironically, the benefits of shifting to e-briefs may actually diminish our ability to successfully archive the information we are attempting to preserve." His concerns, as he later explains, is related to future changes to the format in which these files were created and may no longer be readable by future technology standards. (He recalls, as an example cited in Kunsch, Diogenes Wanders the Superhighway: A Proposal for Authentication of Publicly Disseminated Documents on the Internet, 20 Seattle U. L. Rev. 749, 773 n.115 (1997), difficulties accessing data from a 1960 census where the records were stored on tapes that could be read with a UNIVAC type II-A drive, which became obsolete in the seventies).
In conclusion, prudence should be exercised by both attorneys and jurists in citing authorities and in choosing and the implementation of technologies to submit and preserve works to courts. In a future law review article, I will dicuss the muliplicity of e-filing and e-brief requirements, standards, loopholes, techniques and ethical considerations. I will argue for the need to develop standards in both federal and state courts, which standards must be dynamic and must adapt to the evolving technologies.
As a final note, both "Legal writing" has its own Wikipedia entry and "Electronic Briefs" has its own Wikipedia entry. Rely on them at your own risk!
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1 See, e.g., Central Manufacturing, Inc. v. Brett Bros., (7th Cir., May 02, 2007) (citing http://www.youtube.com/ watch?v=4Cu1WXylkto)
2 E.g., In 2005, John Seigenthaler, a writer, was falsely accused of being linked to the assassinations of John F Kennedy and his brother, Robert, by a Nashville delivery driver playing a joke on a co-worker. Seigenthaler, who had served as an administrative assistant to Robert Kennedy and was one of the pall bearers at his funeral, was not amused.
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