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Using Discovery to Build a Record

November 27, 2009 Leave a comment

In a trial, “the record” is the formal recording of the legal events in the courtroom. It will include transcripts of witness testimony and examination, attachments covering other exhibits admitted into evidence, motions and objections made by the parties or the judge, the judge’s ruling on those motions and objections, the judge’s instructions to the jury if one is empanelled, the facts as found by the fact finder (either the judge or the jury), and the verdict as reported. A good record– one that accurately represents the proof presented and motions and objections made– is nearly as important to a litigant as the trial outcome. In a system that does not permit the introduction of new information after the close of trial (with rare exception), the record contains the only basis for reversal or modification of an unfavorable trial verdict on appeal.

While much is made of the importance of lodging objections and preserving arguments in the record for appeal, the development of the record begins with discovery, the time near the beginning of the trial when parties must produce documents and other information in response to an opposing party’s request for production. Especially in corporate litigation, discovery still can look like rooms full of boxes full of paper. In this context, the focus today increasingly is on e-discovery, and consulting firms that help companies manage their electronic data in the legal discovery context have begun to crop up. Many volumes of scholarship study the discovery process, critique it, and suggest reforms to a legal regime often thought of as unduly cumbersome, costly, and inefficient. The simple idea for the purposes of this post, however, is that our legal system has a discovery process through which parties build a common pool of available information that will allow them to resolve their dispute.

Wikipedia: The Free Encyclopedia

Information is important to the broader public discourse as well, as previously noted. See supra (discussing the availability of judicial decisions). Everything from scholarly books and articles to literature and artwork of all forms to newspapers, radio programs, websites, and encyclopedias can be a source of this information. In recent years, one such source of information has risen in global popularity. Wikipedia, a free, online “encyclopedia,” claims to be “one of the five most visited websites in the world.” The numerous entries present a wide range of coverage and quality, and anyone can edit the entries. See generally this series of posts on the nuances of Wikipedia’s editing culture. Of course, some think this free-ranging malleability renders worthless (or at least suspect) any serious use of the site’s content. (Even if one thought citation to Wikipedia in a formal work was appropriate based on the quality of Wikipedia content, it is still inappropriate under the notion that there is no need to cite to general knowledge, which is usually found in sources like traditional encyclopedias.) The site’s popularity, however, would seem to be a testament to its usefulness to the public, at least in some minimal capacity.

A recent visit to the main English language page revealed that the site is currently running a fundraising campaign. As of today, they represent that they’ve collected $1.4 million on their way to a $7.5 million goal.

When deciding whether to fund– individually or collectively– collective information, both quality and usefulness are relevant factors to consider. More directly, the question this post presents is, “Is Wikipedia worth preserving?” This is a question about informational needs, accessibility,  value analysis, free riders, and a host of other things. To spur discussion, respond to the poll in this post. Feel free to explain your vote or offer other thoughts in the comment section, below.

Categories: Information, Internet, Poll

Happy Thanksgiving

November 26, 2009 Leave a comment

Categories: Music

Jury Deliberations: Twelve Angry [Humans]

November 24, 2009 1 comment

When the parties to a legal conflict fail to resolve their disputes outside of court (e.g., “settling” or “plea bargaining”), the matter goes to a trial. The American system affords two general types of trials: jury trials and bench trials. The latter is another way of saying that the trial will be before a judge alone, without a jury. The former, the jury trial, is familiar and is the basis for the discussion here. When attorneys are presenting evidence and arguing at trial, they must remember that the individual members of the jury are their audience, and they must keep in mind the particular nature of this audience. Although they can vary in size and composition, it is most useful to think of juries as twelve lay citizens who are hearing most of the trial presentation– both its substantive and technical aspects– for the first time. This means that they probably will receive the presentation without any context for understanding or with a warped or misinformed context, due to the proliferation of legal-themed popular entertainment like John Grisham novels and television programs like Law & Order. Most important for lawyers, most mysterious for legal scholars, and most relevant to the current discussion here, however, is the fact that after receiving the trial presentation, the jurors retreat to private quarters and deliberate.

The most popular exploration of the American jury deliberation process came in the form of the 1957 motion picture 12 Angry Men. The movie isn’t perfect– it contains technical inaccuracies that irk some legal practitioners but serve dramatic purposes– but it was good enough for the Japanese, who used the story as an aid to civic education when preparing citizens in 2007 for the adoption of a jury system that was to go into effect this year. 12 Angry Men showcases passion, drama, and emotion in civic deliberation. These sound like good things, and they probably are when thought of as aspects of a process that leads to a desirable outcome. In the trial context, that would be a just verdict.

In a society that favors quality deliberation as a means to the end in the form of a desirable outcome or decision, things can get twisted around. Specifically, people can find themselves treating deliberation as an end. The wide dissemination of cable television has brought an expansive set of cable news networks into the public forum. These networks have elevated individual “pundits,” who frequently seek to win the day (or, in the television news cycle timescale, the half-minute) by achieving a trite, petty, or trivial oratorical victory. The primary tools in these small battles include shouting, hyperbole, and the silencing of opposition voices. To many, this behavior is mere annoyance, something to pay attention to or not, without consequence.

CNBC's empanelled business and finance jury: The Decabox

There are other, more insidious effects of this twisting of deliberation from a means into an end. One is the presentation of a false dichotomy. Another is the championing of minor points made as key victories that destabilize the opposition in some fundamental way. The first is rather simple, and can be saved for another time: whether it’s Fox News Channel’s “Fair and Balanced” treatment or CNN turning to a “Republican Strategist” to play Devil’s Advocate, these presentations often oversimplify problems, drum up resentment or disagreement where little actually exists, or distort the weight of authority, sentiment, or disagreement by giving “equal time” to “equal viewpoints” that may be neither equal, representative, nor accurate. This post is addressing the second point. That one pundit, usually the host of the program, can extract a minor victory and therefore signal the illegitimacy of the entirety of the talking head-opponent’s (no, not these folks) views distorts public dialogue and understanding, and does so in a manner not immediately obvious to the observer. This is true even when the point “won” is true. It is the relative magnitude, and not the accuracy, of the two positions– the minor victory and the major worldview– that causes the distortion. Even totally bogus worldviews properly withstand attacks comprised entirely of a single, nitpicky counterargument; how much more, then, a more legitimate position.

This happens all over the political spectrum. Sean Hannity demonstrated it well a few years ago when he invited a liberal, environmentalist stooge on his program when Al Gore’s An Inconvenient Truth Tour was in full inconvenience mode. If memory serves, Hannity was not finding a lot of success in this debate. Finally, he seized on a favorable point: then-President George W. Bush’s Crawford, TX ranch was more environmentally friendly than Gore’s Nashville, TN mansion. This nugget of truth in hand, Hannity demanded that his opponent submit and surrender all of his environmentalist positions. This is the trick, though: just because Gore doesn’t practice what he preaches doesn’t mean he’s preaching a false gospel. (The other side is even sillier: because the President did what Gore should have done under Gore’s views, the President is right and we should therefore ignore Gore’s views?) Of course, we can’t get tricked by the trick (that is, we cannot dismiss a Hannity whenever he or she is able to advance only a single true, if off-base, criticism against an environmentalist): just as bad attacks shouldn’t undermine a worthy opponent, neither should weak attacks be taken as a signal of the general merit of the opponent or of the pettiness of the attacker’s general position.

As discussed in the first post, patience would seem to be an apt virtue in this position, as would the impetus to gather further information and seek to discover whether other legitimate counterarguments exist that comes from the knowledge that one must eventually take action in the form of rendering a decision on the matter at hand.

For a current situation that has the potential to play out along lines similar to that of the Hannity exchange recalled above, read this brief post about the leaked climate change research emails and offer your comments below in light of the discussion here. For an argument about how this new information should affect the public’s knowledge and views, read this related post.

Categories: Discourse, Listening

Statement of the Facts

November 23, 2009 Leave a comment

Having recognized the importance of the questions presented section of a legal brief, this post moves on to discuss the indispensability of the statement of the facts. Whether one properly presents the facts without argument or such a statement necessarily is implicitly argumentative, the value for purposes of deliberation and resolution is undisputed. In short, we need to develop a commonly held, rich and thorough set of facts for each question we approach. In discussion as in litigation, there are diminishing returns to fact-gathering (“discovery,” in the litigation context), of course, so our focus in this regard may be better centered on accessibility. Presentation of every possible fact and informational detail bearing on discussion may not be the best use of our resources. See supra (discussing resource limitations). What is important is that all are playing with the same deck of cards: accessibility is key, and informational asymmetries will lead to deliberative breakdowns and unsatisfactory resolutions.

Earlier this month, Google announced that it will enable searching and full-text reading of legal opinions from “U.S. federal and state district, appellate, and supreme courts” through its Google Scholar service. Many readers may be surprised that an announcement like this would receive special attention. Why is it a big deal that court opinions are being offered publicly at no cost? Aren’t they available already? To answer these questions and consider the effect of Google’s new endeavor, a short, unauthoritative history of legal reporting follows.

In the early days of the United States Supreme Court, the Court did not publish its own opinions. They were available to attorneys only through the efforts of private court reporters. These reporters were individual men who, I assume, sat in court on the days the justices announced their decisions and made handwritten notes. Citations to early cases bear the names of these men: Dall. (for Dallas), Cranch, Wheat. (for Wheaton), Howard, Black, Wall. (for Wallace), and so on. There are a few noteworthy points regarding these early reporters. First, they did not publish opinions for every decision of the Court. This means that these individuals controlled the precedental material available to attorneys and litigants of the day (who, presumably, did not have the time to sit in court every day of the Term and take notes themselves), because they decided which decisions were worthy of publication. Second, the reports were interpretations of the orally delivered opinions of the justices. Lacking modern recording technology, these early scribes did the best they could in getting out the gist of the decisions. [Note: I don’t know how true this second point is, but it seems plausible, and, if nothing else, they probably had trouble reading some of the justices’ longhand if they were privy to it.] Third, and more accurately, anyone wanting a copy of these early reports had to pay for them– the Court did not fund these reporters. These three points all presented limitations on the accessibility of information.

Fast forward an indeterminate number of years. The Supreme Court now has its own reporter (still notated “S.Ct.”) for all of its decisions, published as written. I don’t know if these were free, but it doesn’t matter, because no one ever used them. They came out so infrequently as to be unhelpful for attorneys and litigants operating in an increasingly fast-paced world. At some point, the West organization (based out of Minnesota, as I recall from a contracts case about intoxication) stepped in and initiated the early modern era of judicial case  reporting. Eventually the West company (which became Thomson West, and now Thomson Reuters) published hardbound volumes of opinions from most levels of state and federal courts.

Fast forward a touch more, and we’re into the Internet Age. West and another private, fee-supported company, LexisNexis, have digitized the decisions, along with a host of other primary and secondary legal sources, and they dominate the market today. These two electronic sources (West’s is known as WestLaw) are the most complete, versatile, and otherwise accessible sources of public legal information. The catch is that access to these large databases carries a large price tag that is prohibitively expensive for many litigants and their attorneys.

Undoubtedly, the new Google Scholar initiative is an attack on the dominance of WestLaw and LexisNexis. The free service does not appear to cover state and national statutory law, international materials, and secondary sources like treatises and law journals. But it is access to the decisions themselves that is most immediately important to practitioners and parties. Only insufficient searching and indexing tools (particularly a citation-tracking tool like Shepardizing or KeyCiting) will prevent an exodus from the private, pay services.

Google’s Books project has drawn criticism and concern from many quarters, see here, here, and here, but many of these critiques may not apply to this new project, which will offer only public information. Surely the offering of public information at no charge cannot be cause for concern; indeed, Google cites the support of legal accessibility “pioneers” like Tom Bruce of Cornell LII, Tim Stanley of Justia, and Tim Wu of AltLaw.  Some of the accessibility concerns present in the previous periods of court reporting may apply to the new Google service, however, namely those stemming from private control of public information.

Although ability to pay is not a barrier to information, there is no reason to think that the other accessibility obstacles will not apply to Google’s service. Mitigating these obstacles is the fact that court reportage is no longer exclusive: Google is one among a (slowly growing) number of possibly competing choices. Perhaps it isn’t so strange that private entities would primarily be engaged in the management and distribution of public information. After all, governments outsource to and contract with private entities for many of the public goods and services they provide. Why shouldn’t they do the same thing with public information? Or is there any basis to the conspiracy theory-esque worry about increasing reliance on and willingness to trust private organizations like Google with all of our public and private information and data? And if there is, are we willing to bear the cost of managing collective information collectively?

It may be true that we are drowning in information and starved for knowledge. It probably also is true that, to paraphrase Arthur C. Clarke, information is not knowledge, knowledge is not wisdom, and wisdom is not foresight, but each grows out of the other, and we need them all.

Categories: Information, Internet, Legal

Statement of the Case

November 22, 2009 Leave a comment

An attorney should always put a statement of the questions presented at the very beginning of any brief unless the rules forbid it.

J.H. Huebert, How to Persuade Judges in the Real World, 35 Ohio N.U.L. Rev. 829, 830 (2009) (citing Antonin Scalia & Brian A. Garner, Making Your Case: The Art of Persuading Judges, 83 (2008)). Making Your Case is an excellent book for legal writers, particularly appellate advocates, but Hubert’s title is more applicable here. Setting aside the notion of persuasion, the judicial posture is a useful one for approaching the world.

On the national level of the American governmental apparatus, judges usually are considered passive entities. A court cannot reach out and take or create a case that is not properly before it, nor can it concoct a set of hypothetical facts and issue a decision based on those facts. Most of the time, courts cannot even rule on arguments or contentions the parties do not raise. This detached position encourages patience and allows one to receive an orderly presentation of considerations before making a decision. And judges must make some kind of decision. Judges are passive in posture, though not in nature. At the very least, they must issue a judgment– a verdict, decision, or ruling. By convention or rule, they need to be prepared to defend their decisions verbally or in writing. This requirement of eventual and substantial action reinforces and enhances the passive phase and its attendant values. Knowledge that one must later decide focuses the passive mind and encourages patience to allow for a full understanding of the matters at hand. There is mutually reinforcing energy between listening and deciding such that nothing is mere talk, and chatter has little purpose. As usual, time is a foundational consideration: listen, then decide, then defend, and then listen again.

Resource limitations are a part of our condition. When we choose to utilize our limited resources, we want to do so effectively. This applies to mental resources as much as it does to fuel and finances. Regardless of a resource’s renewability, other limitations will constrain its expenditure or utilization. Efficacy and efficiency are the best responses to this fact of limitation, here represented by the phrase “in the real world.” Many scholars are feeding their families today because of their ability to operate (in varying degrees) detached from the real world. Ideas are important. Theory is important. That’s the point of what you are reading and will read here. The seemingly unavoidable limitations on resources demand that we root ourselves in reality, while allowing ourselves to discuss, critique, and reevaluate that reality. This is a chance to find out what happens when keeping it real goes right.

What about the questions presented? Wasn’t that where this was supposed to begin? It was, and it is. Justice Scalia and Brian Garner emphasize the primacy of questions presented because those questions shape everything that follows. I’m not exactly sure what will follow, but I have some ideas and I know you do too. It’s time to start asking questions that matter.

Categories: Action, Discourse, Legal, Listening