Report me and my cause aright
Hamlet, Act V, Scene 2

  The Catchline



BULLETIN OF THE ASSOCIATION OF REPORTERS OF JUDICIAL DECISIONS


Volume XXIII, No. 1 November 2004

PRESIDENT'S MESSAGE

New York will be a tough act to follow, and to those who missed it, you missed a lot! But now the ARJD is planning for the 2005 annual meeting in London, which already holds promise of new and exciting educational and social events. And going to London will provide an opportunity to strengthen and build on friendships with our United Kingdom colleagues, not to mention returning the favor for all the meetings our colleagues have crossed the Atlantic to attend for many years. The International Law Reporting Symposium in New York, in conjunction with the ARJD meeting, was a tantalizing glimpse of how beneficial it will be to improve our ties with our United Kingdom colleagues.

But before the New York meeting and the International Law Reporting Symposium become part of the ARJD's history, special recognition is due Bilee Cauley, who quietly handled the bulk of planning, advance work, and coordinating that preceded our gathering in New York. And thanks to Gary Spivey, Andy Ashe, Bill Hooks, Cindy McCormick and everyone else at the New York Law Reporting Bureau for the International Law Reporting Symposium.

Personally, however, Judge Kozinski's gracious acceptance of the Henry Lind Award was a special moment in New York, particularly his anecdote about giving Henry a bad time when he was clerking at the Supreme Court. With respect to reviewing opinions, I have a saying that those who need us the most appreciate us the least, and those who need us the least appreciate us the most. Judge Kozinski is clearly in the second group.

Looking ahead to London, let me remind everyone that the meeting announcement and deadlines for signing up will be coming much earlier than usual to facilitate taking advantage of advance-purchase ticketing and planning for any personal touring we may want to do before or after the ARJD meeting.

That means that we are already in need of planning help from our United Kingdom colleagues. Carol Ellis has been a longtime advocate of having an ARJD meeting in the United Kingdom, and in the past year she joined Lloyd Hysan on his site selection trip to London. Robert Williams from the Incorporated Council of Law Reporting for England and Wales has offered to help organize some sort of reception or entertainment, and in New York Dr. Eamonn Hall from the Law Reporting Council for Ireland also offered assistance for the London meeting. Now is the time to come forth with ideas for educational and social events at the London meeting. (Edward.jessen@jud.ca.gov.).


ARJD in London August 4-8, 2005


THE SECRETARY'S REPORT OF THE NEW YORK MEETING

State-wide Automation: Some Observations on the Massachusetts Experience

The first speaker at the ARJD's 2004 Annual Meeting in New York City was James F. McHugh, Associate Justice, Massachusetts Appeals Court. Justice McHugh served as an Associate Justice of the Massachusetts Superior Court from 1985-2001. Since 2001 he has been an Associate Justice of the Appeals Court. Justice McHugh is currently the Special Assistant to The Chief Justice for Administration and Management for the MassCourts Project.

Justice McHugh noted that, at its core, automation, which he defined as the use of technology to ease data collection, organization and dissemination, is a communication tool. He highlighted some of the many Massachusetts accomplishments in this area including the Reporter of Decisions website, which is one way that the Reporter fulfills his mission to get out information about the work of the court. While different states take different approaches to organizing the information, there are often links to reporters' and case information websites, with self help sites for unrepresented litigants. Justice McHugh took a brief tour of other state websites, notably Colorado, Connecticut, Arizona, and New Jersey.

The next important aspect of automation addressed was document management. The primary impetus for the creation of the Massachusetts courts document management system was to deal with the proliferation of paper in the Appeals Court. With thirty judges in the intermediate Appeals Court, all of whom can comment on any decision, there can be significant problems with version control. The system created allows each judge to have a private workspace that he or she can make accessible to others. There is an "enterprise" workspace that is accessible to all judges and allows them to circulate and comment on draft decisions. This system is fully integrated with the case management system and can be integrated with electronically filed briefs.

The MassCourts project is a state-wide case management, scheduling and reporting system which will eventually replace fourteen legacy systems. This system is intended to reduce redundancy in data entry. For example, an arresting officer will enter data that, as the accused goes through the system, will be reviewed and vetted. This will enhance accuracy of information collected, will make event scheduling more reliable and will allow production of routine orders and forms more efficiently. This system will allow tracking and management of case load and workload and will support e-filing.

Judge McHugh addressed some draw- backs. He recommended dealing with a good vendor, as in-house development is difficult. Court culture can create some barriers to success. It is also important to have both client-server and web-based versions of the system, and to address data conversion. The project has largely been successful, and Massachusetts will be testing an integrated system in one county before going state-wide.

Presentation of the Henry C. Lind Award

Judge Alex Kozinski, the fifth recipient of the Henry C. Lind Award, expressed how touched he was by this award. He was particularly honored because, as a clerk at the Supreme Court, he knew Henry Lind. Judge Kozinski then gave an informative speech about unpublished decisions.

Judge Kozinski expressed the view that the movement to have all decisions, even those not published in an official reporter, as citable is somewhat puzzling. The real question is whether all decisions should be citable or viewed as part of the circuits' case law. Circuit courts differ and the degree to which they consider decisions to bind other courts differs. Judge Kozinski talked about the work of the Federal Ninth Circuit Court of Appeals and how it deals with published decisions.

In the Ninth Circuit, a decision decided by a three-judge panel and published in the official reports is binding on future panels and lower courts. The first panel to get an issue, controls the issue, even if it turns out that it has wrongly decided the case. The only way to overrule a decision of a panel is to take the case in banc. There are between five and eight hundred published decisions a year, and close to five thousand unpublished decisions. All judges in the circuit look at published decisions, so clearly, to expand this type of review to all cases decided each year would be impossible. The Ninth Circuit has a good track record of keeping the law consistent. The in banc process provides checks and balances. There are fifteen to twenty each year, as the in banc hearings use a lot of resources.

One problem with publication of all decisions is that the court will say less to the parties. As an example, sometimes a case is problematic because of poor lawyering and it might have had more importance with better advocacy or maybe this is not the right case to make the law. The issue could be important enough that the court would want to wait for another case: if all cases were citable, then there would be no point in this careful approach. The judge indicated that he would be very concerned about the fact that there is no way to screen the decisions. A court can be consistent with eight hundred cases.

There are arguments in favor of the universal citation rule, e.g., the First Amendment argument that posits that you cannot stop people from putting something in a brief. However, we do have restrictions on briefs -- page limits, can't cite overruled authority -- and further, briefs are not in the public domain. Courts have a responsibility to see that lawyers play by the rules to make advocacy even handed and fair. There is no evidence that the framers of the Constitution would have contemplated a judicial reporting system. There is no case that says that everything has precedential value.

There is no question that the Ninth Circuit spends a disproportionate amount of time on the published cases, which tend to be "grey area" cases. The Ninth Circuit has a call out to lawyers to let the court know if there is a case they think should be published or if they see a conflict in unpublished decisions or between unpublished and published decisions. There is someone on staff who screens the cases, which the judges then review in committee. In five or six years of this program, there have been twenty-six requests, with one or two that have passed the review. In conclusion, Judge Kozinski noted that there are no close cases in unpublished decisions.

-- Barbara Kincaid


JUDY RONNINGEN

Judith O. Ronningen, former Technical Assistant in the Office of the Reporter of Decisions at the United States Supreme Court, died on August 4, 2004, in Summerfield, Florida, of complications resulting from a staph infection. Judy joined the Reporter's Office staff in October, 1975, where she worked for Reporters Henry Putzel, Henry Lind, and Frank Wagner. She was promoted to Technical Assistant in October, 1980, and thereafter served as the Reporter's head paralegal editor. Over the years, Judy received two letters of commendation from Mr. Lind and two Superior Performance Awards from the Court. She retired in September, 2002, after 32 years of dedicated service to the Court. Praising her steadfast and diligent performance year after year after year, Wilma Grant, Manager of the Court's Publication Unit, declared at Judy's retirement party that her efforts helped to assure the high quality of the United States Reports throughout her tenure. A long-time member of the ARJD, Judy also served as editor of the Catchline for many years. As to Judy's Catchline work, Jeanette M. Bloom, Clerk of the Court and Reporter for the Nevada Supreme Court, once proposed half seriously that the editor of the Catchline ever after be known as "the Ronningen." Judy will be sorely missed by her many friends and colleagues at the Court and in the ARJD and the legal publishing profession.

REMINDER: FALL EXECUTIVE BOARD MEETING

The Fall Executive Board Meeting will be held on Tuesday, November 16 in Washington, D.C., at the United States Supreme Court. The meeting will begin at 9:00 A.M. and adjourn about 4:00 P.M. All members are welcome and are encouraged to attend the meeting.


MEMBERSHIP REPORT

A warm welcome is extended to our nine new members: Leah A. Walker, Technical Assistant, Supreme Court of the United States; Daniel Long, Technical Assistant, Supreme Court of the United States; Kevin Loftus, Reporter, Supreme Court of Connecticut; Mary Finnegan-Hurley, Librarian, United States Court of International Trade; Maria Makredes, Assistant Reporter of Decisions, Supreme Judicial Court of Massachusetts; Andrew S. Quenga, Staff Attorney, Supreme Court of Guam; Gessner Harrison, Staff Attorney, Supreme Court of Virginia; Patricia Pritchard, Executive Editor, Federal Court of Canada; and Louise Savard, Legal Counsel-Jurilenguist, Supreme Court of Canada.

As of August 2, 2004, forty-nine members of the Association of Reporters of Judicial Decisions have paid their dues. If you have not already paid your dues, please take the time to send your check to Tim Fuller as soon as possible. Thank you.

--Kathryn M. Bann, Membership Chair

SITE SELECTION COMMITTEE REPORT

Lloyd Hysan introduced the report of the site selection committee, and addressed the site for the 2005 conference in London, England. The 2006 meeting will be held August 3 to 7 in Kansas City. Richard Ross and a founding member will scout locations, and there is a possibility that the date could change if we get a better deal a week earlier or later. There was a lively discussion of the potential location for the 2007 meeting. Scott Henwood moved that we have the meeting in Anchorage, Alaska. Bill Haggerty seconded this. The pros and cons were debated, and it was decided that we should table this agenda item for discussion and decision Saturday. On Saturday, the vote was unanimous in favor of having the meeting in Anchorage, Alaska. For the 2008 meeting, Leah Walker moved, seconded by Scott Henwood, that Pittsburgh, Pennsylvania, be chosen as the site. It was unanimously approved.

NEW CATCHLINE EDITOR

After I fell into the all too frequent trap of volunteering to fill a void within an organization to which I belong and said that I would gladly work with Ed Jessen to produce The Catchline, I tried to think of a few different features for our newsletter. Along this line I thought about our readership. Although this may be a simplification, three groups came to mind: long-time active members of the ARJD and retired members, new active members, and members whose only contact with the ARJD is the Catchline. Many of the articles that have traditionally appeared in The Catchline have appeal to all three groups. I imagined though that each group might have particular interests.

For instance, the ARJD is old enough now that many of our members have reached retirement. Today, retirement has many different meanings and, for many, it is an opportunity to begin a new career or follow a different path. I encourage our retired members to contact me at clifford.allen@sjc.ma.state.us or by mail and let us know what you are doing.

For new members I would like to provide an occasional article that will help to provide them with a sense of the history of the ARJD. This organization has assisted its members to understand many new technologies. It has considered and taken positions on many topics such as copyright, case citation, and electronic dissemination of legal information.

This past summer I visited friends in North Carolina and while walking in downtown Raleigh asked a passerby where I might find the North Carolina Supreme Court. The passerby happened to be Dick Ellis, Special Projects Officer for the court. He not only showed us where the court was located, but gave our small group an hour and one-half tour of the building. I was fortunate to be introduced to Ralph White, the Reporter of Decisions for the North Carolina appellate courts. After a preliminary discussion of North Carolina basketball, we talked about the similarities in our jobs and eventually The Catchline.

Mr. White has not attended an annual meeting but looks forward to receiving The Catchline, through which he keeps track of the issues that affect his work. It is likely that other Reporters are similarly connected to the ARJD and are a constituency that should be considered in the selection of articles.

--Cliff Allen

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