"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Friday, September 25, 2015

On legal research

When I was in law school, we were mainly taught on decisions of appellate courts.

I understand the value of appellate court decisions that have precedential value for purposes of teaching, yet, such method overlooks the bulk of the body of law in this country, and, most importantly, the bulk of arguments submitted to the court.  And that is a shame.

I also understand time and expense constraints in legal education.  

Yet, I suggest that it would be helpful if professors would at least point out to students that only a negligible handful of decisions get appealed, even less favorably decided by intermediate appellate courts, and only a speck of decisions are made by the U.S. Supreme Court, and that the U.S. Supreme Court mostly tosses petitions for writs of certiorari, including meritorious ones that do not present "circuit splits".

It would be also helpful if law students, in addition to be hooked up by law schools to free Westlaw and LexisNexis - which will be far from free once they graduate - are given information as to how to find valuable arguments and caselaw that constitute the cutting edge of the law, and that is not in the scanty appellate decisions and decisions of the U.S. Supreme Court.

And that source is pleadings submitted to trial courts, appellate briefs and petitions for the writs of certiorari to the U.S. Supreme Court.

Knowing that this may be their last chance to resolve the case (for many litigants, the trial/motion stage is the last chance, because they will not afford legal representation at the next, appellate stage), a lot of effort is often going in presentation of arguments at the trial/motion level, and at the intermediate appellate level, and these arguments are almost entirely overlooked in legal research done the way taught in law school.

Yet, it is relatively easy to do this type of research, as documents subject to research are public records that must be made available to review of the public without a fee.  A fee is only charged if you ask for a copy of the document, and you won't necessarily need a copy of the entire document, you only need to glimpse the arguments and the law cited in support of the arguments.

Many courts in New York (where I practice) are scanning their decisions and all pleadings filed with the court.

Pleadings in support of motions are a good source of research.  After all, a lot of courts simply skip certain important arguments for reasons unrelated to their merits.

It is, perhaps, more difficult to obtain copies of appellant's briefs in New York.  In the NYS Supreme Court, Appellate Division, 3rd Department, for example, you need to make an appointment to look at appellant's briefs in certain cases, and sometimes I see the record on appeal sent back after the appeal is decided to the lower court, so you will need to track where such appellant's briefs went.

One easy and valuable research resource is is a federal public information source containing all court filings in all federal courts which are not under seal, and most of them are not.

One needs to pay to use Pacer, but Pacer only charges 10 cents per page, often does not charge for more than 30 pages, even if the document you are getting is much longer, and often does not charge anything for copies of actual original court decisions.

If you are a civil rights plaintiff suing a state governmental official (let's say, the Governor), you can first do research on the Internet as to the name of the Governor, the name of the Governor's predecessors, when did the Governor first take the office, and then run a search on Pacer in federal district courts in your state of prior lawsuits on Pacer for the Governor's name as a party and, if the Governor is newly elected, for the names of the previous Governors as parties in litigation.

If you have problems with violation of your constitutional rights, most likely, you are not alone in it, and other people had similar problems before you.

After I started to do this type of legal research, and compared as to how much the mainstream media is covering the actual lawsuits filed, litigated, dismissed or resolved - by settlement or trial - it became clear to me that the mainstream media (and often, social media, too), does not cover the majority of interesting cases and issues.

So, you will not learn about these litigated lawsuits from the media.

And, even if you do learn about court decisions (final decisions) on Westlaw or LexisNexis, usual packages for sole practitioners do not include appellate and motion briefs, the most valuable source of arguments and citations.

In order to understand what you may be missing in foregoing research through pleadings, I encourage you to invest several dollars into downloading from a decision in a certain civil rights case from a federal court, on a motion to dismiss or a motion for a summary judgment or judgment on the pleadings, the motion papers that have led to the decision, and the complaint (initiating document for the lawsuit) that the motion papers addressed.

What is good about Pacer is that, for each federal court case, it provides a "docket sheet", in HTML or PDF format, where every filing in every civil rights case is made public record, is shown and is clickable and retrievable by any member of the public, lawyer or not.

You may be surprised to discover, after comparing:

  • the initiating complaint;
  • motion papers addressing the complaint;
  • the court's decision on motion papers
 that the deciding court did something incorrectly, and that certain valuable parts of the complaint or of legal argument were overlooked or incorrectly reflected in the ultimate court's decision, and that certain law and precedent could be incorrectly applied by the court, as compared to how it was applied in the precedents cited in the memorandums of law supporting motion pleadings.

In this type of research, one should, of course, consider whether certain arguments won on that issue or not, but that is not necessarily the end of decision-making as to whether to use that same argument in your case or not.

After all, we see social progress developing quite fast over the past couple of decades, and constitutional law, even though it often lags behind, is starting to pick up pace.

Only 15 years ago, homosexuality was a crime.

This past June, people across the country were celebrating the right to gay marriage in the streets.  That is quite a progress, and a yesterday's losing argument buried somewhere in Pacer may be your winning argument of tomorrow.

Including pleadings into the scope of your research does not add much, if at all, to the time of research, does not add much to the expense of research and certainly provides for a richer body of research than is available if you restrict yourself only with appellate decisions.  

As to expense, it is much less expensive to research this way on Pacer than to do it on commercial databases that use Pacer resources anyway.  You are just cutting out the middleman and go to the direct source, at a much-reduced price.  

Also, does not charge you by the hour, as commercial databases do, only for the documents you actually want to view - and, as I mentioned above, often provides certain documents for free or with capped costs (3 dollars max for a very large package of documents far exceeding the 30 pages charged in that 3-dollar price).

Remember that most cases are not appealed, most of appealed civil rights cases are resolved through "summary orders" on appeal without reaching substantive issues or doing any analysis, and the U.S. Supreme Court, statistically, takes only 70 something cases each year.  

So, an entire ocean of law and legal thought remains untapped and waiting for your research, and I encourage you not to foreclose that valuable research opportunity for yourself.  

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