Tag Archives: Appellate court

Dec 23 2009

To The Google Scholar User: Buyer Beware

Image representing Google Scholar as depicted ...
Image via CrunchBase

Here is a bit of common sense from real life example: when using Google Scholar for your legal research, use care in making sure that versions of a case match. Legal Writing Prof Blog has a post about an attorney preparing a brief for filing who noted a discrepancy in the footnote numbering between the official Wisconsin Reporter version of a case and the Google Scholar version. The Blog quotes the attorney’s findings as follows:

The source of the discrepancy quickly became apparent.  In the official version of the case (as in all official versions of Wisconsin cases), the filing of a petition for review in the Wisconsin Supreme Court gets noted in the caption with a footnote placed at the end of the name of the party that filed the petition.  The symbol for this footnote is a dagger, not a number.  Google Scholar, however, designates this footnote with a number (in this instance, the dagger became “1”) and renumbers the remaining footnotes accordingly.  Where there’s more than one footnote attached to the caption – e.g., Ellsworth v. Schelbrock, 229 Wis. 2d 542, 600 N.W.2d 247 (Ct. App. 1999) – Google Scholar shifts the footnote numbers even more:  in Ellsworth, the caption has two footnotes, so the numbered footnotes shifted by two as well, making footnote 1 in the official version into footnote 3 in the Google Scholar version.

My thinking on the proper role of Google Scholar is this: the greatest cost in using the paid databases is the time spent poking around looking for the main cases on a point of law. Once you have identified those cases, the costs of pulling them down out of the paid databases is relatively inexpensive. I see Google Scholar as an effective (but not sole) tool for the former task. When writing an appellate brief to any court, I would not feel the slightest bit comfortable relying on Google Scholar’s version. At that point, I would be pulling the actual cases from the paid databases. While these sources are far from infallible, they do have a longer track record with respect to accuracy, as well as complete citations and the ability to Keycite or Shepardize, a must for briefs to be filed in any court.

So there you have it. Use the free resources with your eyes wide open to their possible shortcomings, and you should not go far wrong.

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Dec 7 2009

Consulting Wikipedia Voids Conviction

The logo of Wikipedia.
Image via Wikipedia

Outside research doesn’t help a juror’s cause in Maryland: in a quest for understanding, a juror consulted Wikipedia about two medical terms that may have swayed the juror’s decision to convict a homeless man of murder. Consequently, the Maryland Court of Appeals overturned the conviction and life sentence. The case, Allan Jake Clark v. State of Maryland, was reported in yesterday’s issue of the Maryland Daily Record. According to reporter Steven Lash,

the juror’s Wikipedia search denied Allan Jake Clark a fair trial because “the right to an impartial jury embraces the right to have the case decided exclusively on the evidence that is produced in open court,” the Court of Special Appeals held in an unreported opinion.

Thus, Anne Arundel Circuit Court Judge Paul F. Harris Jr was wrong not to have declared a mistrial upon discovering that juror Alfred Rudolph Schuler had looked up the terms “livor mortis” and “algor mortis” on Wikipedia, an online reference site, and printed out the pages, the appellate court stated in its 3-0 decision.

The reasoning behind the reversal is not news to attorneys: consulting any information outside that presented in the course of the trial is potentially prejudicial and grounds for mistrial. What is interesting is that jurors — and people in general — think nothing of turning to the internet for answers to any question, including the meaning of scientific and medical terms like “livor mortis” and “algor mortis.” Juror Alfred Rudolph Shuler didn’t even consider his actions to be outside research: the article refers to Shuler’s explanation of his activities – ““I did go to Wikipedia and I looked up the meaning of ‘lividity,’” Schuler told his questioners, referring to the general term for blood flow after death. “To me that wasn’t research. It was a definition.”” The trial court permitted the case to continue after discovering printed copies of the Wikipedia entry, thereby muddying the grounds for the conviction.

This wasn’t the first time this year a Maryland court considered this issue. In May, the appellate court overturned a conviction in Wardlaw v. State because a juror had looked up the term “oppositional defiant disorder.”

Researching information on the internet has become second nature to many, to the point where looking up arcane bits of specialized information on Wikipedia, Google, Bing or any other virtual resource is like checking the traffic report on the radio. We are truly in the Information Age, where everyone can become a scholar. All the more reason to apply care in choosing the resources to consult and demanding that those resources be accurate.

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Jun 15 2009

With A Little Hoop Jumping, You Can Get Those Texas Opinions Without Paying For Them

Don Cruse at the Supreme Court of Texas Blog responds to the outrage that unpublished memorandum opinions have been made precedential authority but ready access to them has not been provided. All but one of the Courts of Appeals can be searched with an operator in Google: “site:courts.state.tx.us/opinions.” For a specific court, add __rdcoa before “courts”, with the underline being the court’s circuit number. Dallas court opinions can be found at http://www.5thcoa.courts.state.tx.us/search_o.htm. Cruse offers additional advice on how to search Texas Supreme Court opinions, even they are all published and do not pose the same problem as the unreported appellate court opinions. Check out the official website here and Don’s website here. Or simply use the same basic Google trick suggested for the appellate opinions, inserting “supreme” for the specific court and adding “historical” after the last slash instead of “opinions.”

Thanks Don for rising to meet this equal access problem with some excellent advice. Although the system is not perfect, and is a bit cumbersome in its reliance on the less than perfect Google, it does offer some means to reach these resources without having to shell out the big bucks.

Hat tip to Legal Research Plus

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