Case Law Closed

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Case Law Closed

It’s 2022 and a legal researcher still can’t go to the source for every judicial opinion. I forget that sometimes since this is a problem that is obscured by the licensed legal databases we use everyday in our law library. But a bill in front of the Colorado legislature is a reminder that access to a cornerstone of legal information – judicial decisions – remains haphazard at best.

The Colorado bill mandates that the judiciary:

… SHALL PUBLISH ONLINE, IN A SEARCHABLE FORMAT, AND MAKE AVAILABLE FREE OF CHARGE, EVERY OPINION OF THE SUPREME COURT OF THE STATE OF COLORADO AND OF THE COURT OF APPEALS. THE JUDICIAL DEPARTMENT AND THE GENERAL ASSEMBLY SHALL EACH INCLUDE A LINK TO THE OPINIONS WEB PAGE IN A CONSPICUOUS PLACE ON THEIR WEBSITES.

Concerning the Online Availability of Opinions Issued by Colorado Courts, HB 22-1091

So far, so good. But if you read the Colorado Public Radio piece, the outcome will not be a Colorado state judiciary resource:

Under the bill, the state would pay one of the existing legal information services to make their case law collection available to the public. The services would likely remove the valuable annotations they provide to paying customers, which provide additional context, but they would at least publish the original rulings in full…. Putting the opinions online is expected to cost $100,000 initially and $30,000 a year going forward.

Important Colorado court rulings could finally be free to access under a new bill“, Andrew Kenney, CPR News, February 10, 2022

Instead, the judiciary will apparently be taking the content they create and paying a legal publisher an annual fee to make the information freely accessible. Information the courts are already giving the publisher. Information the legal publisher probably is already reselling to law libraries and legal professionals.

As Colin Lachance, who knows a lot about publishing judicial opinions, pointed out:

“BTW – short term benefit is limited and long run implications of this model are not great. Lets courts off the hook, winds up being more expensive in long run, and leaves control in hands of the commercial supplier. If courts won’t own publishing obligation, the state should.” – Colin Lachance, 2/10/2022

It does beg the question: why don’t judiciaries, that already control the creation and dissemination of opinions (since they decide between published and unpublished), take an ownership role in public access to those opinions?

The Whole Is Less Than The Sum Of Its Parts

The worst case scenario is that judicial opinions aren’t made publicly accessible at all. With that very low bar, it’s not hard to understand why judiciaries don’t try to wrangle this issue. They are already coordinating with legal publishers to create resources that the legal publishers can resell. These may or may not be official resources but they provide access.

Even in Colorado, someone could use Google Scholar (or Justia but not PLOL any longer) to pull up a recent decision.

Google Scholar page for Colorado Supreme Court case (Pettigrew v. State)

The difficulty with any legal publisher other than the court, however, is that you don’t really know what you’re getting. Are you seeing the latest decisions? The final publication?

Some of the challenge seems to be that digital judicial opinions are still format focused, with slip opinions and advance opinions, precursors to the final book-focused document. I wonder how often (%) there is a textual change and whether the first released opinion can’t just be called a final opinion if it hasn’t subsequently been edited.

The Colorado Supreme Court has case announcements on a weekly basis and the case above on Google Scholar was in the January 10 announcement. The latency seems to be about a 10 day lag, as cases from late January were in Google Scholar but Colorado decisions in the first February announcement weren’t.

Perhaps more importantly, these decisions are already available on the Colorado Supreme Court web site. If you navigate to the case announcements, and open the relevant PDF, there is a clickable link to the advance slip opinion. And Colorado uses uniform case citation, which can help you to make sure you’re looking at the right document.

So, to recap, the Colorado judiciary:

  • use uniform, vendor neutral citation
  • publish at least some of their own opinions, to their own web site, as searchable PDFs
  • announce the release of new opinions, with hyperlinks
  • has a federated search tool that can crawl and index a variety of content

The judicial branch is so close to just being able to do all of this by itself. It already has its own publishing stream, to get opinions from the judges to the publication point. Admittedly, they’d need to tighten things up a bit but it’s possible.

For example, the Colorado Supreme Court search engine is an end-of-life Google Search appliance that is using an unsecure HTTP connection. I can find opinions with it but it’s perhaps not using a current index. They need a modern search utility.

They may also need to think about their folder structure. The Colorado Court of Appeals seems to have this down. In fact, you can create a simple Google Custom Search Engine Programmable Search Engine very simply by pointing it to the /Opinion/ folder:

Colorado Court of Appeals Opinions

You will get ads in those results but I’m pretty sure a court implementation could use the Google ad-free custom search module. Here’s what the clear interface looks like, below. What’s weird are the Justia logos, even though the links are going to the COA web site.

A search using the keyword “divorce” on a Google custom search that pulls from indexed documents published by the Colorado Court of Appeals

All of which to say: Colorado doesn’t need to outsource this. They could probably handle it themselves. And, while it is good that someone in the state government is focused on legal information access, it’s a shame that the leadership isn’t coming from the judiciary.

There are much worse things than paying a legal publisher to give free access to the content you give to them. And the legal-publisher-as-official-reseller is a long-standing alternative for North American judiciaries to avoid becoming publishers themselves.

A Bumpy Road

When I was new to the United States, I learned a song about the “50 Nifty United States,” which has stuck with me my whole life. So, humming that song, I started from the top of the alphabet to see what other judiciaries are doing with free access. And it didn’t take long to get a wide range of solutions.

Fifty Nifty United States lyrics: “Alabama, Alaska, Arizona, Arkansas, California, Colorado …”

Alabama

Alabama has long run their own opinion service. It’s only accessible to legal professionals so I don’t really think it’s much better than nothing. You can find slip opinions, by date, but they are deep linked PDFs into their ColdFusion database, ACIS. Lawyers can sign up for ACIS accounts but you need an Alabama State Bar ID number or equivalent.

Alaska

Judicial opinions in Alaska are findable but, as far as I could tell, only by parts of the case style. If you don’t have a name, or case number, or something similar, you are locked out. It’s not a legal research tool. Unusually, Alaska also has access to trial court opinions available, but they treat them as public records and they are from a different, pay-per-view source. I know in the past they have also provided licensed legal publisher access to the public, from Thomson Reuters.

Arizona

The weird setup for Arizona’s judiciary surprised me. I’ve always thought of Arizona – thanks to Maricopa County – as a bit of a leader in access to justice and access to legal information. Like many information sites, the judiciary site search at the top right doesn’t return any opinions. Site searches are a missed opportunity for a comprehensive search. You have to navigate into the site to find opinions.

The judicial opinions are segmented, as they are on lots of court web sites, by year. It’s not clear to me that this is useful for legal researchers unless they are looking for a very specific case, by case style. Fortunately, they use a hack that I quite like, which is that the segmented years are really just pre-built search results.

On any of the yearly results, you can click to search decisions. It’s not a proper legal research tool but you can at least look at multiple years at a time and do a bit of sorting by type of case (civil v. criminal). The search types are a lot of inside baseball though, and being able to select an interlocutory decision from petition for review isn’t going to be meaningful to a public audience for the purposes of faceted search.

Even more strangely, once you use that search (I did a search of civil Supreme Court opinions between 1/2018 and 2/2022), at the bottom of your search results, you can see a link to search decision document text. The holy grail! Except, not really. I clicked through and, no matter what word I put in, I was told there were no results. For example, one of the cases that had been returned involved a school board. When I typed “school” in the Opinions Custom Search, no results were returned. This is almost worse than no access, as it can make a researcher think they don’t know what they’re doing.

Arkansas

I’m partial to Arkansas, having gone to law school there (Little Rock). So I was glad to see that the Arkansas Supreme Court hosts its own opinions and has a good search tool for them. In a way, I’m not surprised, as Arkansas is where LoisLaw emerged from in the 1990s before it was absorbed by Wolters Kluwer.

Like Arizona, the site seems to be built around search. So the default links to browse Court of Appeals and Supreme Court opinions look like they’re just “return all” search links. Unlike lots of the legal professional + court staff-centric interfaces I’ve seen, this one starts with a keyword search. You can search by party or lawyer but there’s not an assumption that’s the first thing on your mind.

California

California, like Colorado is planning, has outsourced their public access to legal information. Like Texas, California is a whole other country and generates a ton of legal decisions. On the judiciary’s web site, for example, you can see all the published opinions in the last 100 hours or the last 120 days, and segment that by court level.

But if you want the whole kit and kaboodle, there’s a link that will take you to a LexisNexis branded site. The CPR article about Colorado suggested that the Colorado opinions will be stripped of headnotes. The California license includes headnotes, giving public legal researchers the ability to find relevant cases. They’re designated California Official Reports Headnotes, suggesting that the court has at least managed its intellectual property in a way that allows it to control access to its own editorial content.

Access Requires Resources

I won’t go through all 50 states. You get the picture and, frankly, I think those 5 are pretty good examplars of the range of access options a legal researcher will run into. I looked at a bunch of the states in 2006. Some, like North Dakota, are still rolling their own, albeit with significant technology upgrades. Some, like California, are still outsourcing. And others, like Alaska, have changed their approach over time.

The bottom line is that information access requires a dedication of resources. Courts are almost universally already doing almost all of the work to publish their opinions. What little editorial added by legal publishers should not act as a barrier to courts delivering their own opinions directly to the public.

Similarly, the legislature should be funding judicial branches so that they can afford to provide the legal information directly to citizens. When I first read the Colorado courts piece, I wondered if the $100,000 up front costs and $30,000 a year future license was merely a way for the Legislature to avoid increasing the judiciary’s budget. I don’t have any insight into that.

At the end of the day, more access is better. It may not be the most cost-effective. It may allow judicial branches to avoid the obligation that one would expect them to take on, to self-publish their judicial opinions. But at least people who may not have access to commercial legal publishers can still read the legal decisions that define their lives.