Wikipedia In Court: The How & The When

The logo of Wikipedia.
Image via Wikipedia

I haven’t picked on Wikipedia in a while, so when I got the Legal Writing Institute email this morning with a link to the article entitled Wikipedia in Court: When and How Citing Wikipedia and Other Consensus Websites is Appropriate, I figured it was time for another go-around with the authority-by-crowd-compromise site. Authors Hannah Murray and Jason Miller undertake to define a process to determine when citing to Wikipedia is o.k., despite its faults, failings and questionable authority. The authors premise their article with an explanation of the difference between citing sources like Wikipedia or, egad, the Urban Dictionary for the meaning of slang terms and relying on such sources for the “contours of the xyphoid process.” In short, the authors believe that appropriate citation of Wikipedia is driven by the legal context in which the citation will be used and the structural limitations of Wikipedia in that same context. I say there is no such thing as appropriate citation to Wikipedia in the context of a legal brief or judicial opinion.

One of the issues is that Wikipedia articles are open to constant revision from any source. The authors believe that some of this concern can be addressed by qualifying the citation by date and time, and explain how to find the time-stamp for the particular page. The authors also believe that Wikipedia is a fine resource for determining the community or consensus perspective on a non-legal concept. Thus, the more technical and formalistic a concept, the less appropriate it is to cite Wikipedia.

While I am right there with the authors on their caution against citing the big Wiki for technical concept, scientific or biographical data, I am still not convinced it is a reasonable source for crowd consensus on the meaning of common phrases such as “business day.” Take, for example, the fact that women are highly underrepresented on Wikipedia as editors and contributors and you are missing half of the population that might have an opinion on what a business day is. The field is further narrowed when you consider that Wikipedia contributors are a fairly small (and shrinking) subset of on-line denizens – those that would even consider taking the time to edit a group Wiki. This small subset cannot and should not be considered to be even a remote facsimile of a public “consensus” on any subject, let alone one that might drive the opinion of a court.

The authors opine that the Wikipedia entry is likely more reliable when it is “common wisdom [that] is more likely to be correct.” If so, then why cite Wikipedia at all? Why wouldn’t it be the subject of judicial notice at that point? I say, back away from the Wikipedia and look to the underlying sources. I challenge their conclusion that Wikipedia is a “great source” in this context – go ahead and use it to look up information to settle a quick argument at the bar or to pull links or lists of other resources that might actually be curated and reliable. But don’t even think about going there to support something as important as a legal decision.

For what it is worth, and to sit on the other side of the fence for a moment, any citation to Wikipedia that relies solely on date and time is insufficient – I would hope that anyone citing the source as authority would also consider attaching a copy of the actual language on the page at the time of citation. Consider using a handy Internet Explorer or Firefox tool like iCyte, which freezes a page in time for later review. Then, be prepared to defend your use of this highly questionable resource.

Reblog this post [with Zemanta]
Advertisements

Don’t Mess With Texas, When It Comes to Memorandum Opinions Anyway

It seems Texans are of the “opinion” that one should leave no stone or judicial opinion unturned, even if the opinion is only accessible though Westlaw or Lexis. Erika Wayne at Legal Research Plus tipped me off to a recent change to the Texas Rule of Appellate Procedure 47 that discusses the use of unpublished and memorandum judicial opinions. Apparently, in 2003, the Texas legislature barred the use of unpublished legal opinions in civil cases, but authorized the use of memorandum opinions in their place. In 2008, the Legislature took matters one step further by giving the memorandum opinions issued since 2003 full precedential value.
So, what’s the problem you ask? Well, these fully binding, precedential memorandum opinions are only accessible by Westlaw or Lexis. Cha-ching!
Hey, Texas! What’s up with this move to lock the law behind a very expensive toll booth? If the Texas legislature insists that memorandum opinions are binding, then the Texas legislature better figure out a way to open access to them. In an age when information is moving steadily towards free and open source, this short-sighted procedural move seems more than a little backward. I suppose the next move is to require lawyers to ride to court on buckboard.

[Caption]

Reblog this post [with Zemanta]

Don't Mess With Texas, When It Comes to Memorandum Opinions Anyway

It seems Texans are of the “opinion” that one should leave no stone or judicial opinion unturned, even if the opinion is only accessible though Westlaw or Lexis. Erika Wayne at Legal Research Plus tipped me off to a recent change to the Texas Rule of Appellate Procedure 47 that discusses the use of unpublished and memorandum judicial opinions. Apparently, in 2003, the Texas legislature barred the use of unpublished legal opinions in civil cases, but authorized the use of memorandum opinions in their place. In 2008, the Legislature took matters one step further by giving the memorandum opinions issued since 2003 full precedential value.
So, what’s the problem you ask? Well, these fully binding, precedential memorandum opinions are only accessible by Westlaw or Lexis. Cha-ching!
Hey, Texas! What’s up with this move to lock the law behind a very expensive toll booth? If the Texas legislature insists that memorandum opinions are binding, then the Texas legislature better figure out a way to open access to them. In an age when information is moving steadily towards free and open source, this short-sighted procedural move seems more than a little backward. I suppose the next move is to require lawyers to ride to court on buckboard.

[Caption]

Reblog this post [with Zemanta]