WestlawNext and the 2010 Buzz

The West-maintained blog, Legal Current, has noted that WestlawNext created a "buzz" in the legal research community in 2010...

So much so that Massauchsetts lawyer, writer and media consultant, Robert Ambrogi recently announced that his post titled “A First Look at WestlawNext” was the most widely read entry on his popular legal blog LawSites for all of 2010.

Ambrogi is, indeed, a leader in keeping track of online tools, practices, and electronic developments in the legal field. His blog, Law Sites, is well worth reading for the material about online legal research alone.

Legal Current also links to its post from early 2010 that recaps comments in the blogosphere about WestlawNext. These links, mostly posted at the time of the introduction of WestlawNext, all seem to be positive. Well. That's no surprise.

Juror Behavior In the Social Media Age

Ken Strutin has posted a compilation of news and case reports in which juror behavior in the information/social media age is considered. The article, on one of the premire legal information websites, LLRX.com, can be found here - Juror Behavior in the Information Age.

Strutin correctly makes the point that if one of the virtues of the jury system is that the jury itself is comprised of our peers, it is logical to assume that members of the jury will ordinarily do internet research using Google or Bing and may maintain a blog, a Facebook page or a Twitter account. It is also logical to assume that these jurors might be inclined to use these resources before, during, and after the trial. Strutin's article provides specific instances in which these activities came to light and how the courts dealt with this kind of activity.

The online misconduct of jurors seems to be categorized to four general areas -

1. Publishing or distributing information about a trial, e.g., tweeting or posting updates on a social media site.
2. Uncovering information about the case by searching the Internet, entering social networking sites or visiting virtual crime scenes.
3. Contacting parties, witnesses, lawyers or judges via social networking for example.
4. Discussing or deliberating the merits of the litigation prematurely or inviting outside opinions.

Stetin gives current examples of all four. He poses this question -"The revolutions in technology, especially social media, invite the question of how litigants can hope to find a jury of impartial strangers in a world where everyone is connected?"

Links to news reports, cases, and legal articles make this a good place to start research on the issue of juror conduct in a digital age.

Readers of this blog may recall a recent post that discussed the issue of how evolving technology can affect the role of jury, counsel, and court when faced with certain kinds of evidence. It seems increasingly clear that social media and the Internet will necessarily affect the way in which jurors are to be instructed about their duties.

Law Professors Sue for Defamation - Win $5+ Million

The case of Rudovsky v. West has resulted in a stunning victory for the plaintiffs. In 2009, Professor David Rudovsky of the University of Pennsylvania Law School and Professor Leonard Sosnov of Widener Law School sued West for publishing a poorly researched 'sham' pocket part to a Pennsylvania criminal law treatise they had written. Even though it had been prepared by the West staff, the pocket part featured the names of Rudovsky and Sosnov. Late last week the jury in the case found West liable for defamation and returned a verdict for $90,000 in compensatory damages and $2.5 million in punitive damages for each professor. You can find the verdict form here on Google Docs.

The treatise, Pennsylvania Criminal Procedure: Law, Commentary and Forms has been in print since 1991 and is a part of the West Pennsylvania Practice Series - quite similar to the Connecticut Practice Series. In 2008 Rudovsky and Sosnov wanted to revise and republish the 2001 edition. You can read the Declaration of David Rudovsky here from Justia Dockets. You can review the full Complaint here. Each new pocket part had, for years, included citations to 100 - 150 new cases, code sections, rules and, of course, expert commentary. West resisted the preparation of a revised edition and, without the participation of the professors, indeed, without their knowledge, published a new pocket part that did not contain the numerous changes that had taken place in Pennsylvania law since the publication of the last pocket part. According to West, there is a contractual provision that allows them to publish an update without changing the names of the authors. Regardless, it seems clear that the jury adopted the plaintiff's argument that West's actions constituted defamation per se.

Possibly the best overall review of the litigation is by Erika Wayne here on the Legal Research Plus blog. A good explication of all of West's mistakes during the litigation is here on the Law Librarian Blog. There is another concise review here on Jonathan Turley's blog, Res ipsa loquitor. Turley's post also addresses the probability that the verdict will be reduced.

A pre-verdict review of the case is here on the online version of the ABA Journal. The National Law Journal published an insightful article early on and you can find it here. For other comments see posts here on the Legal Skills Prof Blog, and here on 3 Geeks and a Blog, both of which helped develop the story and provided links to the relevant documents.

Although, as Turley points out, the verdict will almost certainly be reduced this will be a clear opportunity for the Court of Appeals to comment on what many consider to be West's hubris and greed

Legal Travails of Superheros and Supervillians

Here's a super-duper new blog to add to your RSS reader: Law and the Multiverse - Superheros, Supervillians and the Law. Here's the description of the blog by the originators:

"If there’s one thing comic book nerds like doing it’s over-thinking the smallest details. Here we turn our attention to the hypothetical legal ramifications of comic book tropes, characters, and powers. Just a few examples: Are mutants a protected class? Who foots the bill when a hero damages property while fighting a villain? What happens legally when a character comes back from the dead?"

This is a new blog but some of the universe-shattering topics discussed so far include -

Supervillians and Insurance: Who's Gonna Pay for That? - Is it an insurable risk when the Joker blows up half of Gotham City?

RICO and the Legion of Doom - Acting in concert to destroy the universe may very well subject the individual members of a group of supervillians to federal prosection.

Is Batman a State Actor? - Does Batman's close working relationship with Commissioner Gordon make him a state actor subject to constitutional guarantees and protections?

Still not convinced? Here's a review on Lowering the Bar (the blog of legal humor) and for the more serious minded (sort of) the Volokh Conspiracy. And, you'll like the interview with the originators of the blog here at the NY Times Arts Beat section. Here's the take from Above the Law. They like it(?).

Bing - Google Comparison Tool

If you are interested in seeing the differences in the results of a Google search and of a Bing search you can use this site from Black Dog, a German web optimization company. Just put your search terms in the top (English) box. You will get a side-by-side comparison of Google and Bing.

You might find it interesting that more often than not, where your search can best be answered by a Wikipedia article, that article will be listed as the top relevant result. Try "quantitative easing" or "double jeopardy" or "district of columbia gun ban."

Bing v. Google Heats Up

John Cook at Tech Flash (Seattle's Technology News Source) reports that Bing is making movement against Google in search market share. According to Cook -

"Bing accounted for 25.27 percent of U.S. Internet searches for the four week period ended November 27th, up two percent from October, according to Experian Hitwise. (The numbers include the integration of Yahoo, but even separately both Yahoo and Bing showed some growth). Google remains on top with 70.1 percent of searches, but it showed a small one percent drop."

These are not stunning figures but if they continue it could be an interesting trend. Now Bing will just need to add a Bing Book feature, Bing Docs, and, for us legal researchers, Bing Scholar.

A word of advice to Bing - when you get ready to work on your legal search engine make sure you talk to some law librarians. First rule? Make sure every user can understand why they are getting the results they they get. How a legal researcher gets the results is just as important as the results themselves. In law, process is as important as conclusion.

USSC - Kindle vs. iPad

Law is, of course, information driven. Now it appears more and more to be technology driven. The Law Librarian Blog has posted a snippet of the C-SPAN interview with Justice Kagan in which she admits to using a Kindle to read briefs. Then she lets it slip that Justice Scalia uses an iPad to do the same.

Doug Berman at the Law School Innovation blog asks if USSC justices are using Kindles and iPads when will law students? As Berman points out it is only a matter of time - coming soon - that the casebook as we know it will be available on either platform.

As the USSC Kindle vs. iPad news goes viral check out the post at the Young Lawyers Blog. There Brian Malcom wonders "... what's on Justice Scalia's playlists in the background of his iPad while he peruses briefs."

We already know the answer to that from an earlier post. It's do wop, of course; more specifically, Sh-Boom by the Chords, Scalia's favorite song.

Zimmerman Updates Connecticut

Zimmerman's Research Guide, sponsored by Lexis, is one of the best (and vendor neutral) commercial research guides available. As noted in the Gothic Column blog Zimmerman also has a blog (the ZRG blog) to keep you aware of developments on the Research Guide site. There are two recent posts about Connecticut resources here and here.

Zimmerman's Connecticut page itself is a valuable resource for all Connecticut practitioners. In his periodic review of Connecticut resources it looks like Zimmerman stumbled across one of the big gaps in public access to Connecticut law. Here's the comment -

"One surprise: The Connecticut administrative code is apparently not available free online from the State of Connecticut or anyone else."

That's right. There is no one source for online access to the administrative code - the only source is on the individual agency's websites. And that access is, frankly, hit or miss.

WestlawNext Promotes a New Form of Social Media

Westlaw has just announced a new feature for WestlawNext - folder sharing. You can see their pitch for this new product here on their blog, Legal Current. According to the post

-...anyone in an organization can create, share, and modify legal research folders, whether across the office or across the country. Each member of a team can now quickly share information, review research materials, and participate in the strategy of the organization’s matters.

Think of a law firm as a closed, finite society. When you introduce peer-2-peer file sharing you introduce a new form of information and data sharing dependent on social networking. Can an informal user hierarchy and problems maintaining privacy be far off? Not likely.

More Bets on Lawsuits

If you thought the bubble was over, think again.

Now dozens or hedge funds and investment firms are placing bets on the returns from the Madoff case. In this morning's NY Times an article by Peter Lattman & Diana Henriques - Speculators are Eager to Bet on Madoff Claims - gives a full account of how speculators are buying claims of Madoff's victims on the chance of big returns.

Many of the victims can't wait for the years it may take for Irving Picard, the trustee in the Madoff bankruptcy to bring a suit to a successful conclusion. So, speculators are out to buy those claims.

Betting on claims in bankruptcy has been going on for years. Each bet (or "investment" if you will) is certainly well considered and researched. These bets are not made to finance the suit itself. Picard, as trustee, has virtually no option but to file the suits and has probably already amassed a litigation fund from the proceeds from the sale of Madoff assets. These bets are more like laying wagers at the race track. If you can accurately judge a horse's abilities your chances of winning can make wagering pay off.

Financing Lawsuits - A Sound Investment?

Readers of this blog may have seen two recent posts on financing of lawsuits here and here. But it would be wrong to say that this is a recent trend. In fact, the financing of lawsuits by third parties has been a growing trend that began even before the start of the current recession in 2008.

Take a look at this NY Times article from 2006 – Hedge Funds Find Returns in Making Small Loans. Investing in lawsuits appears to be a profitable holdover from the prerecession low interest rate bubble. Now that rates are even lower than they were in 2006 the investment is even more attractive. If you read through the 2006 article by Jenny Anderson and Julie Creswell, you will see that the return on one of the loans mentioned in the story is set at 30%.

From the investment point of view there is probably nothing wrong with businesses – hedge funds and the like – loaning money to parties where the lawsuit has already been filed. An independent evaluator of the suit (the attorney who took the case, investigated the facts, found the relevant experts, and made a judgment about the merits of the case) has taken the initial step in determining whether a suit will result in a favorable settlement or verdict. The attorney’s risk is the investors’ risk. Individual investors will probably not look closely at the actual merits of the case but will look to the attorney’s experience and win rate, and the awards in the relevant jurisdiction to make their own determination of the risks involved. But there will, inevitably, be frivolous cases that will be financed by these loans/investments. Will the investors be safe from sanctions? Will a whole new form of jurisprudence spring up to protect society from big-money lawsuits? Or, will we renew and revise the old common law crime of barratry?

A lawsuit is always an uncertain thing. Recovery can turn on a witness' change of story, the plaintiff's whim, a change in the underlying law, or an attorney's off day. There is no "sure thing" in law or litigation. But then, of course, there have always been people ready to bet on a long shot. That's like buying derivatives made from sub-prime mortgages.

Taking a Cut of the Marital Estate

Readers of this blog may recall an earlier post about how investors are lining up to finance major tort litigation. Predictably, a service now exists that will help finance a divorce for certain parties.

The story, by Binyamin Appelbaum, reporting in last Sunday's the New York Times, tells of yet another instance in which parties to a lawsuit can seek outside help in financing litigation. Taking Sides in a Divorce, Chasing Profit, details the efforts of an investment company, Balance Point, to turn a profit by investing in divorce cases. So far, Balance Point seems to represent (1) women, (2) who do not have jobs, (3) who are raising small children, and (4) whose husbands run their own businesses.

Anyone who has ever handled a divorce case for such a client will immediately recognize the problems. The owner of a business, in full control of the financial records and the ability to hide assets, can stonewall discovery until the other party cannot sustain the litigation and must settle for less than their full due. Balance Point charges a percentage of the total amount of the settlement. To be profitable, Balance Point is only financing cases in which the net worth of the parties is somewhere between $2 mill and $15 million.

Regardless of the justice that might flow from such an arrangement there are recurring, troublesome ethical issues. For example, who is controlling the settlement? How dedicated are the investors? Are they in it for the long haul or do they look for short term returns on their money?

As Appelbaum points out in this series, this is a whole new development in the law. He writes -

While this business is in its infancy, Balance Point is part of a bigger trend — the growing industry that invests in other people’s lawsuits, arming plaintiffs with money to help them win more money from defendants. Banks, hedge funds and boutique firms like Balance Point now have a total of $1 billion invested in lawsuits at any given time, industry participants estimate.

The Price of Justice?

Anyone who has seen the movie, A Civil Action, starring John Travolta and Robert Duvall, will realize that the cost of justice can sometimes hover just out of reach. The movie and the book chronicle a suit against industrial giant W.R. Grace for pollution of the ground water in and around Woburn, Massachusetts. As the suit moves forward, plaintiff's lawyer, Jan Schlichtmann, finds it increasingly difficult to finance the suit. How can he pay for depositions and expert witnesses? Ultimately, he is forced to settle the case.

Financing a lawsuit has always been difficult. As you might expect with the current recession, financing a suit has become increasingly problematic. But, American investors, despite coming off making some of the worst bets ever on the subprime mortage market, seem willing to invest in what must be one of the riskiest bets yet - major suits against major tortfeasors.

A story in the NY Times outlines the continuing trend. Putting Money on Lawsuits, Investors Share in the Payouts, by Benyamin Appelbaum, details how hedge funds and investment firms are lending money to plaintiff's attorneys so that these big suits can move forward. The investor's motives are not, as you might expect, altruistic. Instead, they take a hard look at the facts, the law, and the possibility of a positive results.

There are a number of ethical, practical, investment, and social issues that are raised by this kind of activity.

Will Technology Force a Reconsideration of the Relevancy Rule?

The rule regarding the admission of relevant evidence in the United State is almost universal. The terms of Federal Rule of Evidence 403, for example, are simple and representative of the law as a whole. It sets out a classic balancing test between the probative value of the evidence to be admitted and the prejudicial value that evidence may have. Rule 403 states in part -

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice...

But, with each year that balancing act, in the right kind of case, becomes more difficult to apply. As John Schwartz and Katie Zezima point out in With Video Everywhere, Stark Evidence is on Trial, an article fromThursday's NY Times, the sheer ubiquity of video images are subjecting that balancing act to its own trial.

Consider the case from Massachusetts in which the trial judge has ruled that the video capture of a young boy at a gun show shooting himself in the head with an Uzi will be admissible in the prosecution of the organizer of the event. Judge Velis will allow the video but is still considering whether the audio will be heard. The video briefly went viral on the Internet until it was taken down by YouTube as being too grisly.

Quoted in the story, Stephen B. Bright, the president of the Southern Center for Human Rights, said -

"Every law student learns that there is a delicate balancing test to see if the prejudicial impact outweighs the probative value before such evidence is admitted,” but “they quickly learn that in practice the balance always comes out in favor of admitting gruesome crime-scene photos, autopsy pictures, 911 calls, everything."

The rules of evidence should be sufficiently flexible to withstand the test. But can the jurors? Schwartz and Zezima discuss the impact of such evidence on the juror in a case where such evidence is admitted. Some jurors admitted to a feeling of potential post traumatic stress. One way to prepare the jury is to voir dire for the emotional stress such evidence will certainly cause.

Valerie Hans, a law professor at Cornell, said the power of video evidence has to become part of jury selection — to find people who can withstand the emotional battering of the evidence and still do the job before them and not be “dominated by vengeful thoughts.”

“We really ask our jurors to do a lot,” Professor Hans said.