Law and Conversation

February 1, 2011

More on court opinions on the Internet

Yesterday I posted about the distinction that a decreasing number of jurisdictions, including Illinois and the federal courts, make between “precedential” and “nonprecedential” opinions, historically referred to as “published” and “unpublished.”  Today brings word of an interesting new article by Peter W. Martin of Cornell Law School, “Abandoning Law Reports for Official Digital Case Law.” The article, which you can download without charge from SSRN, discusses Arkansas’s cessation of publishing its state courts’ opinions in the Arkansas Reporter, which had been the official record of those decisions, in favor of posting them on the Internet, where the state’s Reporter of Decisions maintains them as official records, and “explore[s] the distinctive alignment of factors that both led and enabled the Arkansas judiciary to take a step that courts in other jurisdictions, state and federal, have so far resisted.”  Thanks to Prof. Martin for making this article freely available, and a Hat Tip to Paul Lomio of Stanford Law School and Legal Research Plus for posting and tweeting about it.

On still more breaking electronic legal news, congratulations to young legal research provider FastCase on inking deals with the D.C. and Georgia Bars.  I wrote in 2009 about the company’s service, which the Illinois State Bar Association provides to its members as a free benefit, for the Illinois Bar Journal.  As part of preparing the article, I interviewed Fastcase’s CEO, Ed Walters, whose business acumen so impressed me that I interviewed him again and got more great commentary for a subsequent IBJ article on social media for lawyers.

And in other news related to the Illinois Supreme Court’s recent amendment of SCR 23, the state court rule that distinguishes precedential from nonprecedential appellate opinions, my profile of Chief Justice Thomas Kilbride in the Illinois Bar Journal, which includes a sidebar explaining the justice’s leadership with respect to the court’s action, is now up.  (Link may not work if you’re not a member of ISBA, and, if you’re a lawyer or a judge, you really ought to pony up and join 😉 .)  The justice has a fascinating and inspirational story, and I was honored to get to tell it in the pages of the IBJ.

On a completely different subject that has nothing to do with the law or court opinions, here’s a link to a LadyGagaLicious video:  Zheng Lab’s hilarious “Bad Project.” Send it to your favorite scientist!  Hat Tip:  Freelance writer Sandra Boncek Hume.

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January 31, 2011

Shakespeare, SpongeBob, and the law

Any article with “Shakespeare and SpongeBob” in the headline will get my attention.  And, indeed, I enjoyed this article from the New York Times on Staten Island Civil Court Judge Philip S. Straniere, who, with a little help from his literary friends, achieves his goal of writing decisions that the litigants can understand.  (The article’s original eyecatching headline has been changed to a less colorful one that omits the literary and cartoon references.)

Judge Straniere numbers not only the Bard and residents of Bikini Bottom among his friends, but also L. Frank Baum, Mario Puzo, Dr. Seuss, Oscar Hammerstein, Meredith Wilson, MAD magazine, and many others, all of which he’s cited in opinions he’s written. 

Lawyers are often criticized as a profession for being poor writers.  I don’t think that’s entirely fair—there are many lawyers who are very fine writers, and many fine writers who trained in the law—but it is true that many statutes, administrative regulations, court opinions, and legal articles, all of which are, admittedly, written by lawyers, rival Ambien as cures for insomnia.  I haven’t read any of Judge Straniere’s opinions, but I’ll bet they’re delightful.

Reading about the judge’s citation of nonlegal sources in order to bolster the understandability of his opinions to his audience–the litigants–made me think about another side of legal writing:  the briefs that lawyers submit to their audience, that is, judges.

Nonlawyers may not generally know that there are two types of opinions issued by many intermediate reviewing courts: precedential and nonprecedential.  They’re also referred to as “published” and “unpublished,” though that’s no longer generally true.  In Illinois, at least, all opinions, state and federal, are published in some fashion, if only on the Internet.  The two types are also referred to as “opinions,” which are published and precedential, and “orders,” which are “unpublished” and not precedential.  The number of states that continue to make this distinction is diminishing, Ottawa (IL) appellate lawyer Michael T. Reagan, who’s studied and testified on the issue, tells me.  The federal courts also continue to distinguish them.

In those jurisdictions that continue to make the distinction, it’s important because precedential opinions are legal authority and may be cited in briefs filed with the court.  Opinions that the authoring courts or judges designate as nonprecedential are often subject to court rules that actually prohibit their citation, except under certain narrowly defined circumstances.  In Illinois, the court rule applicable to those opinions is Supreme Court Rule 23.  In the federal courts, the applicable rule is Federal Rule of Appellate Procedure 32.1.  Federal district courts may adopt their own rules to some degree on whether and to what extent to allow the citation of nonprecedential opinions issued before January 1, 2007.

I’ve written a number of articles for the Illinois Bar Journal on court rules regarding nonprecedential opinions.  The most recent addressed the Illinois Supreme Court’s amendment of SCR 23, which was effective on the first of this year

Whenever I talk to lawyers who practice before courts of review, they wonder why it should be OK, and certainly not prohibited by any court rule, to cite the words of Shakespeare, SpongeBob, the Talmud, or the person they sat next to on the bus that morning, but not OK and, in fact, prohibited by court rule, to cite the words of the very court before which they’re appearing if those words happened to appear in an opinion designated nonprecedential. 

Though the question is rhetorical, it’s a good one.  The answers I’ve heard from proponents of maintaining the distinction include that nonprecedential opinions add nothing to the law (which others say isn’t so), that they’re not as well written or of as high quality as precedential opinions (an assertion that surprises me), and that citing them is never, or hardly ever, persuasive–which may be so, but then again, Shakespeare and SpongeBob probably won’t tip the scales, either.

Lawyers and judges, what do you think?  Can anyone provide other reasons for continuing to make the distinction between precedential and nonprecedential opinions?  Do the courts of other countries make this distinction?

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