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Monday, March 19, 2012

Ind. Decisions - Using Wikipedia as a source in your brief?

A Court of Appeals opinion today, Robert Hardin v. Carlotta Hardin, includes this footnote on p. 2:

We note that in Wife's Statement of the Issues, she criticized Husband's Statement of the Issues in a short argumentative paragraph before she stated her own version of the issues for our review. We advise counsel to reserve argument for the Argument section of the appellate brief. Further, as part of Wife's criticism, she explained some terminology by citing to Wikipedia, an online encyclopedia. See Appellee's Brief at 1 n.1. It is acknowledged on Wikipedia's home page that it is an encyclopedia that “anyone can edit.” http://en.wikipedia.org/wiki/Main_Page (last visited Feb. 16, 2012). Thus, we would caution against relying on Wikipedia as a source in an appellate brief, especially when there are other, more demonstrably reliable sources also available online.
See this Jan. 29, 2007 NYT article by Noam Cohen, headed "Courts Turn to Wikipedia, but Selectively," quoting Judge Posner:
“Wikipedia is a terrific resource,” said Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit, in Chicago. “Partly because it so convenient, it often has been updated recently and is very accurate.” But, he added: “It wouldn’t be right to use it in a critical issue. If the safety of a product is at issue, you wouldn’t look it up in Wikipedia.”

Judge Posner recently cited a Wikipedia article on Andrew Golota, whom he called the “world’s most colorful boxer,” about a drug case involving the fighter’s former trainer, a tangent with no connection to the issues before his court. He did so despite his own experience with Wikipedia, which included an erroneous mention of Ann Coulter, a conservative lightning rod, as being a former clerk of his.

“I have never met Ann Coulter,” he said, but added that he was heartened that the friend who spotted the error could fix it then and there.

That friend was Cass R. Sunstein, currently a visiting professor at Harvard Law School. “I love Wikipedia, but I don’t think it is yet time to cite it in judicial decisions,” he said, adding that “it doesn’t have quality control” He said he feared that “if judges use Wikipedia you might introduce opportunistic editing” to create articles that could influence the outcome of cases.

He added, however, that he could not fault a use like Judge Posner’s, which “seems too innocuous for a basis of criticism.”

Many citations by judges, often in footnotes, are like Judge Posner’s, beside the main judicial point, appear intended to show how hip and contemporary the judge is, reflecting Professor Sunstein’s suspicion, “that law clerks are using Wikipedia a great deal.”

Prof. Sunstein, BTW, has moved on and is now a member of the Obama administration.

Posted by Marcia Oddi on March 19, 2012 02:01 PM
Posted to Ind. App.Ct. Decisions