BULLETIN OF THE ASSOCIA

Transcription

1 The Catchline BULLETIN OF THE ASSOCIATION OF REPORTERS OF JUDICIAL DECISIONS December 2015 Volume XXXIV No. 3

2 CONTENTS President s Message... 3 Nashville Meeting Recap... 4 Executive Board Meeting Fall

3 President s Message Season s greetings! I hope this issue of The Catchline finds you enjoying all of the good parts of the holidays, like friends, family, and cookies, and a minimum of the stressful parts (such as the end-of-the-year rush common at the courts where most of us work). In the United States, we just celebrated Thanksgiving, which reminds us to stop and reflect on all we have to be thankful for, and while health and family are always at the top of the list, ARJD and its members definitely appear on my list too. For example, I want to extend welldeserved thanks to those who put in so much work to make this year s annual meeting in Nashville the resounding success that it was. Susan Williams generously gave a great deal of her time visiting Nashville and negotiating the contract years in advance, and then, along with the other members of the Annual Meeting Committee, coordinated every logistical detail thereafter, right down to raffle prizes for attendees! And, as usual, Leah Walker, Chair of the Education Committee, did an amazing job arranging a group of engaging speakers who presented a wide variety of topics, from copyright issues related to Nashville s chief export, music, to the Tennessee Attorney General acting as that state s reporter of decisions, to considerations of language used in decisions involving sexual assault. I m also thankful that some delightful people decided to attend ARJD s annual meeting for the first (but I hope not the last) time: Jason Macke from Ohio, Cecily Nicewicz from Colorado, Sarah Rabe from Maryland, and Sarira Sadeghi from Nevada. Each of these new members enthusiastically participated in the meeting and added excellent ideas and energy to the conversation. Included in this issue is a summary of the annual meeting minutes for those who were unable to attend. And, of course, I m grateful to our long-standing supportive vendors, who made sure we had lovely evenings to follow the interesting days. Tom Leighton, Laurie Oliver, and David Spencer from Thomson Reuters arranged for a delicious dinner and entertaining country music revue on a cruise on the General Jackson Showboat; they also generously hosted the hospitality suite throughout the meeting (the atmosphere of which encouraged one member to pen a country and western original The Reporter of Decision Blues, which I think must be our new theme song). Dave Collins and Leslie Ostrander from LexisNexis took the group to the show that made country music famous, the Grand Ole Opry, which, in addition to showcasing lively acts such as Pam Tillis, Mel Tillis, and Larry Gatlin & the Gatlin Brothers, paid touching 3

4 tribute to Congressional Medal of Honor recipients who were also there. And Crystal Bryant and Kathy Hough from Wolters Kluwer treated the group to a trip to historic Franklin and dinner (and dancing!) at Mangia Nashville. Sincere thanks are also in order to our Ohio members and the Supreme Court of Ohio for allowing the Executive Board to hold its fall meeting on October 30 at the beautiful court building in Columbus. Special recognition goes out to Mary Joe Beck for hosting the Board all day. In addition to conducting ARJD business (minutes of the Board meeting are also included in this edition), the Board was able to tour the stunning Supreme Court building, including the meeting space for the 2016 annual meeting; check out the DoubleTree, the hotel chosen for the meeting; and try out a few nearby restaurants (one of which may be the site of our traditional Wednesday night welcome dinner). And speaking of the DoubleTree, I appreciate the immense help of Susan Williams, Bill Hooks, Leah Walker, Brian Redmond, and Kevin Loftus in negotiating the contract with the hotel. After seeing Columbus, the DoubleTree, and the Ohio Supreme Court building, I am confident that we will have another excellent annual meeting in Be sure to mark your calendars for that meeting, which will be held August 4 through August 7, For its spring meeting, the Executive Board plans to meet at the United States Supreme Court in early April An blast with the details will go out early next year. As always, all members are welcome to attend. If you are interested in attending, in person or by alternative means (perhaps by teleconference or Skype, if the appropriate arrangements can be made with the Court), please send me an mooneyhan@nvcourts. nv.gov. Finally, I would like to thank you for reading this message and The Catchline and for offering feedback on what you d like to see in future issues. Thank you! Brandee Mooneyhan ARJD President 4 Nashville Meeting Recap Thursday, August 6, Welcome to Nashville. On behalf of Mayor Karl Dean, Courtney Wheeler welcomed the ARJD to Nashville and encouraged the group to go downtown and enjoy all of the attractions the area has to offer. 2. Welcome by ARJD President Susan Williams. Susan extended her thanks to several people who assisted her during the year: Nashville attorney Anne Martin, who recommended restaurants, provided meeting space for executive board meetings in Nashville during the year, and arranged for the opening remarks by the mayor s office, among other things; Chris Fallon for offering meeting space at the United States Supreme Court for Executive Board meetings; the members of the Executive Board; Thomson Reuters, LexisNexis, and Wolters Kluwer for arranging fun events during the evenings; and Leah Walker for planning a wonderful education program. Susan also welcomed new members: Sarira Sadeghi, Cecily Nicewicz, Sarah Rabe, and Jason Macke. Finally, Wilma Grant asked Susan to say hello to the group. 3. Intellectual Property and Music Copyright Issues in Opinions. Presented by Daniel Gervais, Professor, Vanderbilt Law School; Director, Vanderbilt Intellectual Property Program; Associate Reporter for the Restatement of Copyright, First. Professor Gervais organized his presentation around two topics: (1) the role of government when creating, funding, and using intellectual property; and (2) intellectual property with respect to music.

5 Professor Gervais discussed key cases involving the federal government s interests with respect to intellectual property, such as a recent case filed in July 2015 in which the state of Georgia sued a man for posting its annotated state laws online. Code Revision Comm n v. Public.Resource.Org, Inc., No. 1:15-cv-2594-MHC (N.D. Ga., filed July 21, 2015). There are also Eleventh Amendment issues, see for example Cambridge Univ. Press v. Patton, 769 F.3d 1232 (11th Cir. 2014), and Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings Bank, 527 U.S. 627 (1999). These cases illustrate the inherent tension: states can assert immunity when using intellectual property, but then turn around and prosecute people who use materials created by the state. Does government need to protect the material it produces? The answer seems to be no. It sells very little of what it produces, so there is little financial incentive; government disseminates information when it is required to do so or wants to do so. When there is a combination, i.e., government working with a private party to disseminate information, as is the case with many court reports, it raises the question as to whether the private party adds value (thus making it protectable intellectual property copyright is available when one creates something original). The private parties would argue yes, but the underlying material is not protected by copyright. And is what the private party adds separable? 17 U.S.C. 105 provides that copyright protection is not available for any work of the U.S. government. Watch the recent Georgia case mentioned above to see how this area develops. Professor Gervais briefly discussed other countries approaches and noted that the United States system is unique. With respect to patents, the U.S. government can patent information to prevent others from doing so and then limiting access. For example, the government patented and then released the information regarding the human genome, to prevent others from getting a patent on it. The U.S. government owns tens of thousands of patents, mostly for pharmaceutical and military uses. The U.S. government funds the development of some intellectual property at different levels (i.e., fully or partially), raising the question of whether intellectual property funded with tax dollars belongs to the people or to the private sector. The answer can be modulated (i.e., a little bit of both). Since 1975, the standard for the government s use of intellectual property has been fair use. See Williams v. Wilkins Co. v. United States, 420 U.S. 376 (1975). 5

6 Professor Gervais characterizes the legal framework for music in the United States as discombobulated, and illustrated this contention by discussing the hit song Hit Me With Your Best Shot, sung by Pat Benatar. Both the songwriter and the publisher had a 50-percent stake in the song; the singer had none. Issues surrounding licensing are illustrated by the case Newton v. Diamond, 388 F.3d 1189 (9th Cir. 2004) (where the Beastie Boys used a 6-second flute loop consisting of three notes). 4. Law and Lexicography: The Dictionary as Legal Precedent. Presented by J. Lyn Entrikin, Professor, William H. Bowen School of Law, University of Arkansas, Little Rock. Professor Entrikin s presentation centered on what she refers to as America s love of dictionaries and how it has affected law. Professor Entrikin began by discussing what constitutes lexicography. She recommended The Language of the Law by David Mellencoff ( the father of the plain writing movement ) as background. Dictionaries of the English language began with Dr. Samuel Johnson s two-volume dictionary in Johnson, who was a college dropout, was opinionated and subjective in building his dictionary. (There are videos online about his life story that are very interesting.) After independence, America needed its own dictionary, and Noah Webster, who has been referred to as a forgotten founding father, published his first dictionary in Webster s dictionary marked a turning point in English language dictionaries, as dictionaries became descriptive ( this is how people speak the language ) rather than prescriptive ( this is how people should speak the language ). The Oxford English Dictionary is meant to be descriptive. Those compiling a dictionary must make difficult choices about what to include a truly unabridged dictionary is not possible. Even now, there is no official regulation of the English language (no academy ). Specialized dictionaries tend to be more prescriptive. The first edition of Black s Dictionary was pub- 6

7 lished in More recent editions under Bryan Garner have been more prescriptive. Professor Entrikin discussed the specific evolution of the Supreme Court of the United States dictionary addiction. SCOTUS has an international reputation (not necessarily positive) for relying on dictionaries. Professor Entrikin finds the dramatic increase in SCOTUS cases citing to dictionaries in recent years disturbing. A turning point was Justice Scalia joining the court in Professor Entrikin pointed out the problems she sees in relying so heavily on dictionaries in statutory interpretation, where plain meaning allegedly controls. SCOTUS justices apparently perceive that dictionaries are objective and neutral, but the English language is constantly in flux, and dictionaries are not revised often enough to keep up (though this may change with online dictionaries). Furthermore, as discussed above, they are not as authoritative as we may think. For example, the senses in which a word may be presented can be in different sequences (not necessarily consistently between different dictionaries); dictionaries take words out of context. Additionally, relying on dictionaries can supplant more reliable tools (such as legislative history). Courts often assume that drafters are referring to the dictionary for meaning but they are not necessarily. Does the legislature necessarily intend to use ordinary meaning? How do we know what that means? Does it mean the most common meaning? The first meaning? The preferred meaning? A specialized meaning? And who should decide among these alternatives? In Nix v. Hedden, 149 U.S. 304 (1893), the Court had to determine whether tomatoes are a fruit or vegetable for purposes of a tariff act, and referred to dictionary definitions (which would make tomatoes a fruit), but instead relied on common understanding that tomatoes are vegetables. Another example is Gonzales v. Carhart, 550 U.S. 124, 152 (2007) (5-4 opinion), in which the Court cited two medical dictionaries can this really be said to be ordinary meaning? The judges shop for dictionaries there is no single one that everyone agrees will supply the ordinary meaning. In fact, the Court recently disregarded the statutory definition set forth in the relevant chapter and decided that Congress must have intended another meaning. 5. Legal Technology, Information Management, and Document Retention. Presented by Marc Jenkins, Adjunct Professor of Law, Vanderbilt Law School and Associate General Counsel & Executive Vice President-Knowledge Strategy, Cicayda. Professor Jenkins welcomed the group to his native city. Professor Jenkins described himself as a recovering practicing attorney and stated he now uses his law license to accomplish his goal of helping lawyers and law students run with technology, not race against it. Production requirements can be overwhelming (i.e., produce millions of documents in a short period of time). According to Professor Jenkins, it s not the strongest or most intelligent that prevail, but those most adaptable to change. He cited several examples of rapid change in our society law is no different. 7 Available information is increasing exponentially and information management and retrieval has become very important in litigation (e-discovery) and puts a lot of pressure on the justice system. Cicayda s function is to act as an information funnel for processing information (going from volume to relevance), for example, boiling down 40+ million pages of preserved information to the approximately 140 documents that are actually relevant. Professor Jenkins used the band Van Halen as an example of simplifying something that can be very complex, i.e., the mythology surrounding the urban legend that Van Halen required a certain color of M&Ms in their dressing room on tour. The real reason was to see if the party on the other side paid attention to detail, i.e., if they can take care of the M&M situation, they would know that the bigger, more complex items in the contract, such as those that affect safety, would be addressed. The wrong color of M&Ms caused them to check each item in the contract, but the right M&M arrangement indicated the other party has read and complied with the contract and relieved them of this burden. The

8 goal of companies like Cicayda is to similarly simplify sifting through seemingly unmanageable amounts of data. Professor Jenkins argued that as knowledge workers today, lawyers need to leverage technology. Many people have the same credentials to differentiate yourself, you must communicate not just what you do, but why you do it, and you can use technology to maximize it. Further, not having access to affordable technology is now a justice issue. The United States is near the bottom among nations in this regard. Professor Jenkins demonstrated information management/retrieval software that helps. He argued that making this part of the task simple and inexpensive frees up time and money for the more complex part, i.e., the application of knowledge and expertise. Professor Jenkins argues that augmented intelligence beats artificial intelligence, and the most potent combination of resources is man+machine. Professor Jenkins s final thought: The one thing we all get in equal measure is time and using technology to save time supports access to justice. 6. Assessing and Citing to Non-traditional Sources. Presented by Jodi Wilson, Director of Legal Methods & Assistant Professor of Law, The University of Memphis School of Law. Professor Wilson s presentation was subtitled The Wikipediaas-Authority Phenomenon. Professor Wilson began researching this area after seeing a citation to Wikipedia in a court opinion. However, Wikipedia is just one of the non-traditional sources that are becoming more popular. There is not a clear hierarchy for non- 8 traditional sources (unlike what s the case for traditional sources), but Professor Wilson argues that we need to assess non-traditional sources by applying traditional principles to non-traditional sources. Professor Wilson posits that there are two key principles for weighing whether a source has authoritative weight: (1) the expertise of the speaker or author, and (2) the procedures a source has in place to ensure information is current and accurate. With respect to Wikipedia in particular, one issue is that the author is often the same person exercising quality control. By design, Wikipedia is authored by anonymous actors with no particular expertise or credentials. Why should we care? At this point on Westlaw in the ALLCASES database, less than 0.1% of cases cite to Wikipedia but acceptance seems to be gaining. How is it being used? In determining the answer, Professor Wilson excluded cases where Wikipedia had to be mentioned (i.e., a juror consulting Wikipedia), and found a wide range of reliance. Some uses were to support collateral ideas or for rhetorical flourish with respect to non-critical elements of the decision. However, see Rickher v. Home Depot, Inc., 535 F3d. 661 (7th Cir. 2008), in which the court turned to Wikipedia to decide the issue in the case (i.e., what constitutes wear and tear ). How are practitioners and courts justifying their reliance on Wikipedia? The short answer is: they often don t. But there have been some indications of why they rely on Wikipedia: it s good enough for collateral references and the wisdom of the crowd is persuasive. But is Wikipedia truly reflective of the crowd? As a practical matter, Professor Wilson admits that the train has left the station, and therefore a categorical ban is not practical. Also, there are many non-traditional sources (so simply banning Wikipedia alone would not address the problem). Professor Wilson recommends an individualized assessment not just

9 of the source, but also of the purpose for which it is to be used. Is it good enough for certain purposes? Professor Wilson would argue no because it has a legitimizing effect (i.e., if Posner does it, 200 others have done it, etc.). Another consideration is the verifiability of information. Wikipedia gives researchers an alternative, in that it requires that information included on it must be capable of verification; if a judge likes the information in a Wikipedia entry, he or she can cite to the source to which Wikipedia cites instead (which should be readily available). When considering posterity, Professor Wilson points out two things that might threaten the foundation of law (in addition to the concerns expressed above): (1) fluid content what you see today might not be what you see tomorrow. The solution, at least in part, is precise citations (Wikipedia will allow you to do a permalink, which allows you to cite a specific version of a Wikipedia article). (2) link rot. Key solution is preservation. 7. Update on OASIS. Presented by John Joergensen, Associate Dean for Information Services and Professor, Rutgers University School of Law. Professor Joergensen described the work of OASIS and the Legal- CiteM technical committee. He noted that some ARJD members monitor the project. OASIS is an international standards organization for XML, which is coding for all types of documents, that is creating many standards for industry, etc. The LegalCiteM committee is trying to create a standard for legal citations. There is another committee (LegalDocML) working on a system of XML markup for all legal materials. What is the problem OASIS is hoping to solve? Professor Joergensen related his comments back to earlier speakers the need to conduct research and discovery with huge amounts of material quickly requires organization. Professor Jenkins s presentation described what Professor Joergensen calls the Google approach, i.e., algorithms to improve linguistic searches, predicting how humans will search for information. This approach does a pretty good job, but it s not the same as being human (i.e., see Watson on Jeopardy, or the concerns about self-driving cars). Human understanding adds another layer of understanding, i.e., context. Legal citations can be logically ambiguous not necessarily unique (i.e., two decisions in the same case issued on the same day slip opinion citation will be identical; dozens of cases listed in tables will have the same citation). OASIS hopes to give each decision a unique identification. The format will be based on print citations (because there are millions already in existence). It will use URI universal resource iden- 9 tifier (URLs are a kind of URI) a unique description of a document (like the Internet works with webpages). Most publishers usually use something just like this, but they are proprietary. OASIS is an openly published standard it can be used to refer to any version that exists. This could help with disappearing versions, i.e., link rot a URI could connect to another available copy. Friday, August 7, Lexis Training Seminar: Tips and Tricks for Advance. Presented by David Dilenschneider, Senior Director, Client Relations, Lexis. Mr. Dilenschneider demonstrated the new platform for LexisNexis, which he described as more Google-like, and the latest enhancements to the product. The changes were made based on user feedback, and Mr. Dilenschneider encouraged the group to keep the suggestions coming. Mr. Dilenschneider walked through several examples to demonstrate enhancements such as practice pages, archived codes, statutory features, improved source recognition when performing searches, a dynamic (expanding) search

10 form, enhanced results display, and settings. Lexis puts forth major enhancements three to four times a year, but smaller ones roll out all the time as Lexis constantly tries to improve the product. Mr. Dilenschneider explained how to use, among other things, Lexis word wheel and pre-search filters. He went through challenges provid ed by Leah Walker and entertained several questions from the group. 9. West Training Seminar: Tips and Tricks for Next Dinyar Mehta and Joel Hurwitz demonstrated Westlaw s new platform. Mr. Mehta began by thanking reporters of decisions for their contribution to the law. He summarized Westlaw s philosophy as being based on trust and confidence. Mr. Mehta walked through five common tasks on WestlawNext: finding content, searching, interacting with documents (i.e., creating folders, sharing/collaborating with coworkers (law clerks), highlighting, annotating), customization (favorites, customize homepage (can share with colleagues)), and mobility (ipad app always in sync with your desktop, keycites automatically updated). He pointed out a quick reference guide on the legal solutions page that compares Westlaw Classic and WestlawNext, and reminded users that reference attorneys are always available at REF-ATTY. Mr. Hurwitz demonstrated West s Drafting Assistant, which includes WestCheck, Flags & Links, Cite Formatting, Doc Formatting, Locate Authority, TOA Builder, and Authority Compiler. Mr. Mehta and Mr. Hurwitz entertained questions from the group. 10. Effective Legal Writing in the Real World. Presented by Chief Judge Keith Lundin, Bankruptcy Court for the Middle District of Tennessee. Judge Lundin stated that a good court opinion is like a good country song, in that it captures the story concisely and states it over and over. Judge Lundin narrowed the types of legal writing to a few categories: (1) transactional/contracts (destructive of good writing), (2) scholarly (can be boring), and (3) judicial (trial court and appellate court they are different). Judge Lundin organized his presentation around one principle and three rules: Principle: Don t write it if you wouldn t say it. This principle has led Judge Lundin to create a list of renegade words: thus, such, therefore, to wit, wherefore, by and through, heretofore, hereby, herewith, instant, pray, the subject [noun], alleged, vehicle, too many the s. The three rules are: (1) Read it out loud. (2) Never file something that only you have read. (3) It s ready when you can t make it any shorter. According to Judge Lundin, the biggest barrier to the implementation of the principle and rules boils down to three letters: EGO. 11. The Unique Role of the Tennessee Reporter of Decisions. Presented by retired Justice William C. Koch, Jr., Tennessee Supreme Court. Justice Koch focused on two unique aspects of the Tennessee legal system: that the attorney general is appointed by the Supreme Court and that the attorney general serves as the reporter of decisions. The reporting of decisions in Tennessee began with Judge Overton writing summaries of decisions in the 1800s; Judge Overton stepped down from the bench and ended up founding Memphis. Judge Emerson started editing 1 Tennessee Reports. On June 10, 1813, the Supreme Court formally approved publication of the first two volumes of reports. The reporter position was created before the attorney general position. Volumes were completed by unknown volunteers. In 1932, West began including Court of Appeals decisions in the Southwestern Reporter; the Court of Appeals had its own reports until In 1933, Tennessee started using West s headnotes. In 1967, Tennessee created a separate Court of Criminal Appeals, which wanted its own reports (this only lasted four 10

11 years). In 1972, the state stopped doing the Tennessee Reports; the official reporter is now West s Southwest Reports. The Supreme Court determines whether decisions are published (the majority are). The attorney general (AG) gets a copy of every opinion. The AG puts the opinions in a filing cabinet until the time to issue the mandate has passed, at which time the AG sends them to West. The AG s involvement is complete at this point, unless West has a question. If West has a question, it sends it to the AG, who then transmits the question to the authoring judge, and the judge responds directly to West. When West publishes the advance sheets, the AG does not review them; it is up to each authoring judge to check them (no staff attorneys work on this). The Court of Appeals does it differently. The parties can play a role in determining whether opinions get published. Justice Koch is a fan of citing unpublished decisions. There has been a paradigm change publication doesn t mean what it used to. All decisions are out in the public and easily accessible. The Tennessee Supreme Court published a rule that dictates the value of different types of opinions. Officially reported decisions are the gold standard and must be followed. Unpublished decisions are controlling authority with respect to the parties in that case, but only persuasive authority as to others. According to Justice Koch: persuasiveness is in the eye of the beholder (or decision maker). 12. Language in Sex Assault Opinions. Presented by Wendy Murphy, Creator and Supervisor, Judicial Language Project and Adjunct Professor, New England School of Law. Professor Murphy s presentation was subtitled Language Matters: Redressing Eroticism, Victim-Blaming, and Vagueness in Legal and Social Narratives About Violence. Professor Murphy identified five categories of problematic language: (1) vagueness; (2) needless eroticism (i.e., intercourse, fellatio, copulation, cunnilingus, fondle, panties, orgasm, climax, perform oral sex, vaginal sex, oral sex, and the special problem of sodomy ); (3) harmful/prejudicial irrelevancies cause unfair discrediting of victims (someone s employment as sex worker, etc., yellow knit underwear, drug or alcohol history, prior victimization, past criminal behavior, prior bad acts, medical history, no corroboration, did not scream, no injuries, past pregnancies and abortions); (4) dual subject/passive voice obscures role of harm-doer, implies that victim was active participant, creates false justification for reasonable doubt, and distances defendant from exclusive accountability ( victim/defendant engaged, victim/ defendant participated, victim performed, victim was raped, victim/ defendant had sex ); (5) decriminalization words that distract from perception of case as between government and defendant and/or that diminish understanding of conduct as the unilateral responsibility of offender ( date rape, spousal/marital rape, erotic terms, shared responsibility, romantic terms such as relationship, liaison, and statutory rape. 11 Saturday, August 8, Roundtable: Issuing Errata in an Electronic Age. Moderated by Leah A. Walker, Colorado Court of Appeals. Leah began by refreshing the group on Peter Martin s comments at the 2014 annual meeting. Often, the public and lawyers are not aware of the revision process, and it can seem secretive. Also, most users rely on electronic services, raising the question of whether it is still appropriate to spend so much time on error-free books. The conversation then turned to the revision process in different jurisdictions. Leah began by explaining the Colorado Court of Appeals process. All decisions are fully edited before release. Changes are made on motions for rehearing the Court will only modify opinion at its own behest or on motion. All modifications are sent to Leah, and are listed on a front page; the attached opinion includes the modifications. If an opinion is edited, M is added to the docket number. If changes are made to an unpublished decision, only the parties are notified. Minor revisions to typos, such as corrections to name spellings, are addressed but the decision is not reissued. After a change is made, both versions, original and revised, are on the website. The Supreme Court is different; only the modified version is posted to its website (with no information on what s been changed). Leah answered questions regarding her court s procedure. Leah also explained Alaska s procedure. In the Supreme Court, if changes are minor, the Court issues a corrected opinion (which is resent to the parties and publishers). If changes are major, a new opinion with a new number is issued. (If a

12 user tries to bring up the original, he will find a notice that it has been withdrawn and reissued as number.) John Jurozcek described the procedure in Michigan. He distributed a handout showing the procedure of both the Michigan Court of Appeals and Michigan Supreme Court. Tom Merritt, who was the reporter of decisions in Massachusetts from 1974 until 1994, gave an interesting history of the procedures followed by Massachusetts over the years. In 1971, the Supreme Judicial Court withdrew an important opinion; in 1972, the state created the intermediate court; in 1974, the Federal Rules of Civil Procedure were adopted, which increased the volume of opinions. Sometime around the mid-1970s, the Court began issuing advance sheets on a weekly basis. In the early 1980s, the office began issuing corrected pages on a weekly basis. Decisions could be corrected (minor changes), amended, or supplemented. Corrections to bound volumes were made on the flyleaf of subsequent bound volumes. Now, advance sheets are in e-book form, and include, inter alia, a table of contents and a new this week feature. The office has always made every effort to inform publishers of changes. Through the years, the office has valued the integrity of the reports and their transparency. Finally, Tom Merritt commended a recent law review article by Richard Lazurus: The Nonfinality of Supreme Court Opinions, 128 Harv L. Rev 540 (2014). Bill Hooks explained the procedure in New York. New York takes a traditional book approach to errata. All of the heavy lifting is done between issuance of the slip opinion and the advance sheet, where a lot of (mostly style) changes can be made. When the advance sheet is issued, the slip opinion text is replaced with the advance sheet text on the court s website (at this point, they should be consistent between all versions). The reporter s office does not flag changes that have been made. The second cycle of corrections is between the advance sheet and the bound volume. There are not that many changes at this point in the process (and those that are made are tiny). Again, at this point, all versions conform (website, bound volumes). If there are any changes after the bound volume, there is an errata sheet in the next bound volume, containing only significant (i.e., it affects reliance on case) changes. The fact that changes have been made is noted on the website ( corrected through [date] ). Bottom line: users should rely on the most recent version. 14. Open Forum for Hot Button Issues. Questions were raised about orders sealing criminal records, i.e., what to do with opinion when record is subsequently sealed; the citation of unpublished, nonprecedential intermediate court decisions and 12 whether the distinction should be abandoned ( published vs. unpublished comes from the book world, and we re in the electronic world now); developments in link rot and Perma.cc; increase in online-only journals courts will have to deal with this soon; what to do with older ARJD documents (i.e., old dues notices, etc.)? meeting site options. After discussion of possible choices and considerations in hotel negotiations, there was a motion to vote on 2017 and 2018 at the same time, with Lake Tahoe slated for 2017 and Toronto for The majority voted in favor of this arrangement. 16. Nominations and election of officers. Susan offered the slate of officers for : Brandee Mooneyhan as President; Brian Redmond as Vice President; Kevin Loftus as Treasurer; and Mary Joe Beck as Secretary. Majority of membership voted to elect the slate. On behalf of the membership, Brandee Mooneyhan presented Susan William with a gift to thank her for all of her work as president. Sunday, August 9, Roundtable Discussion: Open Discussion and Wrap-Up. Moderated by Leah Walker, Colorado Court of Appeals. There were several positive reviews on the content of the presentations. Some problems were noted with visuals (some attendees could not see the presentations due to size, contrast, etc.). One issue may be AV support (this should not be a problem

13 in Columbus, as we ll have support from court s IT staff). The cost for speakers was discussed (rooms, etc.). Discussion regarding room block (it sold out early, but block was same as Denver). There was a suggestion that the business meeting and hot button issues sessions be split up if possible because they both raise thought-provoking issues (would give attendees time to ponder). Also, there was discussion about having more breaks (this meeting was packed tight, with no field trips ), and more free time (to allow more time to explore city). There was positive feedback for the mentor program. Possible topics for future meetings were discussed: planning for retirement, burnout, law clerk training/ court orientation. A suggestion was made to consider breakout sessions (i.e., some geared to newer reporters, some to more experienced reporters, etc.). Leah encouraged members to share ideas throughout the year. Executive Board Meeting Fall 2015 The fall 2015 Executive Board Meeting was held on October 30, 2015, at the Supreme Court of Ohio, in Columbus, Ohio. In attendance were: Brandee Mooneyhan (President), Brian Redmond (Vice President), Mary Joe Beck (Secretary), and Susan Williams (Past President). Committee Reports Communications Committee Barbara Kincaid is heading a task force to think about the Communications Committee. The Board agreed to start using a Google group to communicate. Brian stated that he would ask Dan Spurling to set it up. Brandee said that there was no reason to close down the Facebook page, but not much had been posted there lately. Annual Meeting Committee Brandee reported that the contract with the DoubleTree in Columbus had been signed. Brian has started talking with a hotel in Lake Tahoe. Brandee suggested that Mark Henry be used to help in Lake Tahoe as well, because of the detail that must be addressed in completing the contract. Education Committee Leah intends to use 90-minute blocks for speakers at the annual meeting, while telling speakers that they have 60 minutes to speak, to allow for more break time. Sarira Sadeghi, formerly of the Nevada Reporter s Office, has left the office to return to teaching but is willing to help with a seminar on how to train law clerks. A suggestion was made to hold a session for seasoned reporters to give tips to new reporters, and for a session on retirement. External Outreach Committee Mary Joe passed around a copy of the brochure created by Meg Greene but with recent pictures. The Board agreed that after the information regarding officers is updated, the brochure should be printed. The brochure will be sent to new reporters as we learn of an appointment. Susan moved to approve the printing of the brochure, Brian seconded; motion approved. Also, a letter will be sent or a phone call will be made to reporters in states nearby. Annual Meeting Site Selection 13 Brandee asked for ideas for where to hold future annual meetings after Toronto in 2018: Ft. Worth, Austin, San Antonio, Seattle, Vancouver, St. Augustine, Miami, Savannah, Charleston, Raleigh, St. Louis, Ashville, Tampa, and Boca Raton. Columbus Update Kris Armstrong, Jay Macke, Doug Nelson, and Tony Schroeder of the Ohio Reporter s Office joined the meeting. Jay reached out to Mary Beth Beazley, the writing professor at Ohio State Law School, who will be out of town during our meeting dates. Jay will be having lunch with her to ask about other possible speakers. Mary Joe suggested a speaker from the Innocence Project at the University of Cincinnati. Tony suggested that former Justice Cupp, who is now in the Ohio legislature, might be interested in speaking during a tour of the Ohio Statehouse. Tony also mentioned that we will be doing a tour of the Court during the meeting, and he thought that the group could split. Jay said that LexisNexis discussed taking the group to the facilities in Dayton as an evening program. Jay also mentioned that with Wolters Kluwer leaving the legal publishing arena, this will open up Saturday evening. Suggestions for activities included the Columbus Zoo, COSI, Art

14 Museum, Columbus Clippers, Conservatory, tour of OSU, Wexner, and Ohio Stadium, play at Schiller Park, the Commons, or one of the theaters, and the Short North Gallery Hop. These ideas were both for vendors and to fill Saturday night, formally or informally, as a group. Doug Nelson suggested that the reporter from the Military Appeals Court or from Pennsylvania might be able to speak about their process or attend the meeting. Both are active in the National Conference of Appellate Court Clerks. Kris pointed out that the Ohio Reporter s Office has a painting of Edwin Stanton, a former Ohio Reporter and Lincoln s Secretary of War. Diana Mercer, a librarian in the court s law library, is very knowledgeable in this area. Jay suggested Judge Jeff Sutton as a speaker on state constitutional issues and the history of the Ohio Constitution. Susan suggested a roundtable on burnout, what brings it on, what do you do about it. OLAP, the Ohio bar s group on addiction and mental health issues for attorneys, might have suggestions of speakers in this area. Brandee indicated that she is comfortable not purchasing insurance for event liability for the Columbus meeting. Susan said that it was difficult to find an insurer to write a policy. The insurer was concerned because the association does not have a mailing address or principal place of business. Brandee will try to reach out to Fastcase, which bought Lois Law from Wolters Kluwer, to see if it would be interested in developing a relationship with the ARJD. The arrival dinner needs to be planned, and Brian is already looking at restaurants in Columbus. He has visited Milestone 229 and Due Amici. Susan reminded that the restaurant should be within walking distance of the hotel. Milestone is on the river, while Due Amici has a private room but a food and beverage minimum. Brian asked for an estimate of the number of people that normally attend. Lake Tahoe update Brian has contacted Harrah s in Lake Tahoe, which has been used by the National Conference of Appellate Court Clerks, once. The food and beverage can be met with the cost of the breaks, but the costs for breakfast, which would need to be catered, seems high. One question is whether the ARJD could help with those costs, which would eat up the amount that has been saved in recent years. It was decided that Mark Henry would 14 be asked to help with negotiating the contract in Lake Tahoe. Brian also asked if the schedule should be changed. The Clerks keynote speaker is scheduled for Sunday. Harrah s is pressuring for an agreement, but Brandee suggested looking into other hotels. Brian also said it would be difficult to learn all that is needed to be learned to proceed with negotiations on his own. Dates for Lake Tahoe are August 3 to 7, 2017, including the informal Wednesday night arrival dinner. Brian asked about an ability to shift dates if hotel prices are prohibitive. The Board decided to cross that bridge if need be. In looking forward to scheduling for Toronto, it should be kept in mind that the first Monday in August is a civic holiday there. Other business Templates Susan asked if other states have templates for opinions. Can macros be created? In Ohio, the author of the opinion is responsible for creating the caption. In Nevada, when a case number is looked up, the caption is carried over and inserted in the opinion. In Massachusetts, information is pulled out of a CMS and dropped into an opinion. Arkansas formerly used WordPerfect and developed a macro for captions. Now, Susan has created a template but was curious to know how other states proceed. Self-publishing Brian asked about self-publishing as Massachusetts considers the future of books. Ohio s creation of documents in PDF for posting was discussed. In Arkansas, the metadata is populated from the opinion. Arkansas creates a digital certification that states that the decision is final. Cites

15 to the U.S. Reports, including the blanks, are removed if that volume has not been issued. Arkansas also creates a syllabus, which shows decisions, orders, and motions. Arkansas had all of its printed opinions 370+ volumes scanned; the books were broken down for the pages to be scanned but were returned. Nevada has had a website since the late 1990s. Cases were put on the website from the beginning; cases drop off the website once they appear in printed form. In Massachusetts, only the slip opinions are posted, for a two-week period. Brian spoke with Lexum regarding their Decisia software for self-publishing. All Board members reported as to how the opinions are put on the website no state present has an outside contractor to put opinions online. Nevada has an application that can be searched for opinions. Ohio has CourtNews, but the opinion is announced by the Reporter s office, and Public Information uses social media to send it out to the public. In Massachusetts, the opinions are not edited until after conference. In Arkansas, all opinions are announced the day after conference. Issues of errata have not been completely figured out. Nevada has a revisions table that sets out where changes have been made. Save the date The spring 2016 Board meeting is tentatively set for April 8 in Washington, D.C. The annual meeting in 2018 is now scheduled for August 2-5 in Toronto but might need to be moved to August 9-12 because of a threeday holiday weekend in Canada. Questions from Kevin regarding policy for dues forms. Welcome package for new members Kevin has asked if there is a policy for the dues forms and whether there is a welcome package for new members. The papers need to be sent to Massachusetts so new members can be added to the directory. And Brandee said that she would ask Kevin to let her know when someone joins and she will call them. 15

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17 Officers President: Brandee Mooneyhan, Nevada Supreme Court Vice President: Brian Redmond, Massachusetts Supreme Judicial Court and Appeals Court Treasurer: Kevin J. Loftus (Ret.), Supreme Court of Connecticut Secretary: Mary Joe Beck, Supreme Court of Ohio Past President: Susan P. Williams, Arkansas Supreme Court and Arkansas Court of Appeals Committee Chairpersons Annual Meeting Chairperson: Brandee Mooneyhan, Nevada Supreme Court Communications: François Boivin, Office of the Commissioner for Federal Judicial Affairs Canada Education: Leah A. Walker, Colorado Court of Appeals External Outreach: Mary Joe Beck, Supreme Court of Ohio The Catchline Editor: François Boivin, Office of the Commissioner for Federal Judicial Affairs Canada Assistant Editor: Charles Nezan, Office of the Commissioner for Federal Judicial Affairs Canada Newsletter Publisher/Layout & Design: April Patterson, Composition Specialist, Supreme Court of Nevada Distribution: Daniel Spurling, Massachusetts Supreme Judicial Court and Appeals Courts Special Thanks To: Instagram, Barbara Kincaid and Dan Anselmo for the use of their photography in this issue. Volume XXXIV, No. 3 December 2015 ARJD Web site: ARJD Contact Information The Catchline (suggestions, comments, and questions): info.arjd@gmail.com ARJD Members Facebook page: (to send communications directly to all ARJD Facebook group members via Facebook Wall): members.arjd@groups.facebook.com Address Changes and Corrections? Please alert us by sending an to: info.arjd@gmail.com. 17