Legal Research? Take it to Court

[originally published on Law.com, July 12, 2006.  Also published in Law Technology News as Opinions Online.]

Court-sponsored Web sites are not, typically, a lawyer’s first stop for an opinion, but that may change. There have been substantial developments in access to federal and state court opinions that make court Web sites worth visiting. And as small firm lawyers are pinched in the amount of fee-based services they can afford, using free court Web sites can supplement content from legal publishers’ databases.

States have typically been all over the board in providing opinion access. For example, Alabama court opinions are only available from its Web site via a subscription to Alalinc (although Wallace, Jordan, Ratliff & Brandt hosts its own copy). As with most other states, recent Alabama opinions are also available from Thomson Findlaw or LexisNexis’ lexisONE, although the court’s own content may be more extensive.

CONTENT RELIABILITY

In some jurisdictions, such as Kentucky and California, “unpublished” opinions are available, but may not be cited. Other jurisdictions, such as Illinois, offer an online opinion — but it is not considered the official opinion. The slip opinion may be modified after it is posted to the Illinois Supreme Court’s Web site, with the final copy going on to a publisher while the slip opinion atrophies in the public realm. This currency issue bedevils some case law providers as well as researchers, who grab an opinion from the court’s Web site and must verify that it was not later revised or withdrawn.

Most courts appear to have taken a prospective view of their opinions, meaning that they chose a date and have only published online those opinions since that time. These dates may be the same for the entire court system, or vary by appellate court. Most trial court opinions are not available electronically (an exception: Delaware). File formats range from ASCII and HTML to WordPerfect 5.1 to 8.0 to Portable Document Format. PDF is not universal, but the most common.

Some courts, such as Connecticut and Delaware, have opinions from 2000 on. Others go back further — Alaska to the 1960s or California to the 1850s. (California’s “Last 100 Hours” unpublished opinions feature is a reminder of just how many opinions some jurisdictions issue.)

In some jurisdictions, it is a mixed bag. In Ohio, Supreme Court opinions are available since 1992; Court of Appeals opinions start anywhere from 1999 to 2001, depending on the jurisdiction. Fortunately, for those courts with varying coverage, the search interface usually helps researchers look at all courts regardless of date.

STATE COURTS INNOVATE

Courts are making innovative uses of technology, their own and others, to make opinions available. Many courts provide browse-only access to opinions. But some courts are using off-the-shelf search products to enable keyword searching to approximate legal research case databases. Tennessee uses dtSearch Corp.’s dtSearch. While the framed interface is not terribly convenient, the search is more powerful than a simple text query.

Hawaii and Ohio both use the Google search tool. North Dakota uses Microsoft’s Index Server, which many Web sites use as a free search tool packaged with their Microsoft Windows server. It provides a number of options to query results. The court also has organized its opinions to be browsed by reporter, citation, topic, and judge.

Other courts have outsourced the opinion access function to research companies. California legal researchers can search state court opinions back to the 1850s through a LexisNexis-branded interface. The results are restricted to 10 hits at a time but it makes sense for the court to do what it does best, and let legal publishers do their own bit.

The Alaska State Law Library rolled out an innovative relationship with Thomson West last fall, where it negotiated public access to Alaska state court opinions back to 1960 as part of its contract to use the Westlaw product internally.

While both Thomson West and LexisNexis have been busy with other, more static products like statutes or court rules, these new case law partnerships may provide more value to lawyers and the public. The results do not include the significant added value content found in the fee-based products, but it’s still more than straight text, including searches by counsel, party, or citation.

The federal courts have been more consistent in providing opinion access than states. The U.S. Supreme Court’s Web site is remarkably weak in providing access to its own opinions, but they are readily available for free from many other sources.

The courts of appeal vary in scope and content, with some courts providing unpublished opinions and others not.

The federal district courts have been the weak link in providing opinion access. Each court has different opinions available, sometimes just notable cases or selected opinions. Because these trial court opinions are often sought after, and commonly published by fee-based providers, this was always a gap in free opinion availability. But now many more district court opinions are available. Researchers using the Public Access to Court Electronic Records (PACER) system can use their free subscription to search dockets and other information.

A recent policy change means that a free report is available for court opinions. As with any technology, only courts using a particular version of the Case Management / Electronic Court Filing (CM/ECF) software are participating, but the vast majority of courts are using CM/ECF now.

As with many custom applications, the report results are not necessarily intuitive to use, but that is offset by having quick access to district court opinions.

There is no question that fee-based publishers and mid-tier providers like Fastcase.com or Wolter Kluwer’s Loislaw can provide extensive coverage of case law. As legal research costs rise, free sites, like those provided by the courts or even LexisNexis’ lexisONE and Thomson Findlaw, can be a valuable resource for lawyers and firms cutting back the scope of their fee-based online access.

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