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Saturday, April 30, 2005

About this blog - Disappointments, Part II

I started the Indiana Law Blog three years ago in part to fill a void in the reporting of Indiana appellate court opinions. I thought the courts could do better in making their rulings and related materials available to the public. When my other efforts to improve this failed, the blog seemed a good route to bring to a wider audience concrete examples of some of the things I thought could be made better.

The Indiana Courts website has a number of good features. For instance, the reporting of the Court Rules and proposals for change is very useful. And Indiana was among the first of the states to make video of appellate oral arguments viewable online.*

*[I do wish, however, that audios were available for downloading as MP3 files, as is the case with the 7th Circuit arguments, so that they could be listed to at one's convenience - judicial "podcasts." But this is a minor matter.]

My problems with the court site include:

Indiana has the rudiments in some of these areas. But nothing has changed in at least a half-dozen years. Other states, states like West Virgina and North Dakota, are far ahead of Indiana in making the work of the court available to, and useful to, the public. And they have accomplished this end in a simple, straight-forward, inexpensive manner. "We use our site ourselves" is the beginning to a speech made by a justice from one of these states in describing his court's site.

Starting with the last item in my list first:

Appellate Briefs.

Recall that in a posting Friday, available here, I quoted from the Dec. 31, 2003 New Year's Eve ILB wishlist. Among the items described as those which "could readily be accomplished by our elected/appointed officials, and would make a difference" was:

#2. Copies of briefs for cases before the Indiana Supreme Court [and Court of Appeals] made available online. When? At the same time they are filed with the Clerk of the Court.
Many other states make the briefs available online to the public. Indiana does not.

On April 14th David C. Lewis, Clerk of the Supreme and Appeals Courts, issued a press release announcing "Indiana Appellate Briefs Now Available Online through Westlaw." Some quotes:

Westlaw subscribers have several options for adding this service to their current subscriptions. Individuals who are not Westlaw subscribers may access the service with a credit card, paying on a per-use basis. * * *

"West's online briefs project takes us another step closer to providing the public with greater access to court records," said Clerk David Lewis. "We applaud West's commitment to this project. Not only does it provide Indiana's attorneys with a significant new tool, but it promotes our office's goal of openness and accountability in the judicial system." [emphasis added]

I'm not out to burn any bridges here, but I just don't think so. I think promoting West's project to sell the briefs makes it unlikely that they will ever be available online to the public at no cost.

Who, other than the parties in the case (who already are on the distribution list) might be interested in reading Indiana appellate briefs, if they were freely available?

In short, the same people who read the courts' opinions and listen to oral arguments on the Court's public website should be able to access the briefs there. Is is disappointing that they can't.

The Docket and Calendar

Here is the May calendar for the Supreme Court of North Dakota. The May cases are shown in the right hand column. Clicking an a case in the right column, such as Wed., May 4, 2:45 - Farmers Union etc. leads to a complete run-down on the case, including the two parties' statements of the issues, and links to the briefs, the lower court opinion, and the docket. Clicking the docket link leads to (at the bottom) a list of the docket entries.

Or start with the docket. Say you are looking for State v. Morrison. Type in Morrison. Try it out.

Indiana's Supreme and Appellate Court docket is here. Certainly it is better than no docket, but it is time for improvements. The docket is maddening to use, and delivers limited information. If you have used it before, you understand. If not, try it out. Type in Morrison. Say you were looking for "Michael Morrison." Pick one of the results. If it turns out to be the wrong one (very limited information is provided), you will have to start over from the beginning.

Here is a link to the Indiana Supreme Court's May calendar. It lists the upcoming oral argments, along with basic information. Compare it with the May 2005 calendar from North Dakota. Or the April 2005 calendar from West Virginia.

The Unavailability of Court of Appeals Not-for-Publication Decisions

Two concepts here need to be distinguished: (1) unpublished, and (2) non-precedential.

In the federal court system, "unpublished" no longer means unindexed and generally unavailable to the public. The question remaining in the federal system is whether the rules should be changed to allow these decisions to be cited -- i.e. to have precedential value.

In Indiana, the Court of Appeals panel issuing an opinion may designate it "not-for-publication." Because this large body of decisions is both unindexed and generally unavailable, the question of whether or not a particular NFP decision should have precedential value is pretty much a non-issue -- no one outside the court system and the parties to the case generally knows about it (although paper copies of the opinion are available if one asks for the case by name).

I can only estimate how many of the opinions issued by the Court of Appeals are NFP. I'd venture 2 out of 5. I feel strongly, as I've written several times in the past, that this workproduct of the court should be made available to the public, even if it may not be cited.

I am resisting the temptation to go on at length, but refer those interested to this ILB entry from Feb. 21, 2004. Scroll down to the paragraph that begins: "As reported by Howard Bashman's How Appealing ..." [More: See also this May 19, 2003 ILB entry.]

The Reporting of the Opinions.

So much more could be done in making the opinions of the Indiana Supreme Court and Court of Appeals accessible to the public.

Take a look at the entry page for the North Dakota opinions. You can search the body of available opinions, going back to 1996, by just about anything - case name, cite, topic, justice, etc. ("By justice" would be particularly useful in Indiana prior to a retention election, as I discussed in a post earlier this year.)

In addition, there is the option in North Dakota to search by month and year. So you can find, for example, all the opinions issued in April of 2005. Here is the result.

Click on one of the April 2005 decisions, such as Paulson v. Paulson, and you get this result. Some particularly compelling features include: (1) In the upper left hand corner, information on rehearing status; (2) Also in the upper left hand corner is a link to the docket, where one can access not only the docket, but the briefs and other documents, and audio of the oral arguments; (3) The decision itself is presented in well-formatted html, making it easy to read, and easy to distinguish internal quotations from other cases; (4) Cited court rules and decisions are hot-linked.

Finally, notice the numbering of the paragraphs - the opinions are issued in "medium neutral" format. For more information on medium neutral citations (as opposed to proprietary print citations tied to a vendor), see this entry on "Citations in Transition" from Cornell's "Introduction to Basic Legal Citation."

Posted by Marcia Oddi on April 30, 2005 10:19 PM
Posted to About the Indiana Law Blog