BULLETIN OF THE ASSOCIA

Transcription

1 The Catchline BULLETIN OF THE ASSOCIATION OF REPORTERS OF JUDICIAL DECISIONS December 2016 Volume XXXV No. 2

2 CONTENTS President s Message... 3 Columbus Meeting Educational Program Highlights... 5 Product Review WordRake Education Committee Report

3 President s Message Hello everyone! Cleveland may have had a few highlights this year (the Cavs championship, the RNC convention, the Indians in the World Series), but Columbus hosted a wonderful counterpoint in the form of this year s ARJD annual meeting. I wish to extend heartfelt thanks to Brandee Mooneyhan for all her efforts in organizing the meeting; Mary Joe Beck, Jason Macke, and all the people at the Ohio Judicial Center for the many kindnesses they showed us during our meeting; and Leah Walker for her usual superlative job of presenting speakers who took us from reporting on the frontier to reporting in electronic form, deepened our insights on how to write and edit well and on how our opinions are reported by non-lawyers, and provided us tips on how to cope with burnout and compassion fatigue. I also offer a word of thanks to John Juroszek for all the hard work he and his coworkers at the Michigan Supreme Court have put in to date to create a survey instrument for discerning whether and how post-release revisions to opinions are publicized. Our visit to Columbus was enriched through the auspices of our long-standing supporting vendors. Prior to the start of the meeting, Leslie Metheney and Mike Crosby gave us a tour of the LexisNexis facility in Dayton, for which Alison Manchester flew in from Colorado to give a presentation on the history of Shepards; later in the week, LexisNexis sponsored a trip to the Columbus Zoo, where we spent a delightful evening meeting some of Jack Hanna s team and their furry, shelled, and webfooted friends and feeding giraffes (mostly one greedy giraffe who was exceptionally skilled at blocking his neighbor). Tom Leighton, David Spencer, and Laurie Oliver from Thomson Reuters hosted a lovely evening at the Franklin Park Conservatory and Botanical Gardens, as well as sponsoring the hospitality suite throughout the meeting, thereby giving us a great spot for watching the Opening Ceremonies of the Olympic Games. Beyond those experiences, the city and people of Columbus enhanced our time there. On Friday, we were treated to tours of the Judicial Center and the Statehouse thanks to retired Justice Robert Cupp. We enjoyed delicious meals at Milestone 229 on Wednesday and at El Arepazo on Saturday. After dinner on Saturday, we strolled through the Short North District, absorbing the nightlife on a warm summer s evening and window shopping through various galleries. The meeting and the months since have marked beginnings and endings. During the meeting, we held a luncheon to mark the retirement of Richard Ross from his position as Reporter of Decisions in Kansas; he was the last founding member of the ARJD still active as a Reporter. We also had a moment of silence to note the passing of Helen Hannigan of Washington, who graced the organization with her strong support for many years. At the meeting, we were delighted to welcome first-time attendees such as Lawrence Striley of California; Sara Stratton of Kan- 3

4 sas; Sarah Moore of Nevada; Loretta Platt of New Hampshire; Cara Brousseau of New York; and Kristopher Armstrong, Alicia Elwing, Douglas Nelson, and Pamela Wynsen of Ohio. In the months since the meeting, we have celebrated Kathryn Loomis s appointment as the Reporter of Decisions in Michigan, and we mourn the death of Frank Wagner, the former Reporter of Decisions at the United States Supreme Court and a long-time, ardently active member of the ARJD. And now the organization turns its attention to its thirty-sixth annual meeting, which will be held August 3-7, 2017, in Lake Tahoe, Nevada. We will be holding the meeting at Caesar s Harveys Resort Hotel and Casino. Planning has already begun for events during our stay (I want to acknowledge Brandee s invaluable assistance both in generating ideas and in following through on details), and Leah has already begun sketching out an education program. The executive board met in early December to discuss the meeting planning, the survey instrument, and concerns about what organizational information should be public-facing and what should be kept private. If you have any thoughts on any of those topics, or if you have suggestions for additional topics that you think the board should address at a future meeting, please contact me at brian.redmond@ sjc.state.ma.us. I wish you and your families a wonderful holiday season, and I hope to see all of you in Lake Tahoe. Brian Redmond ARJD President 4

5 Columbus Meeting Educational Program Highlights 1. Writing Tips and Advice on How Opinions are Reported by Non-lawyers. Presented by Andrew Welsh-Huggins, Interim Associated Press (AP) Ohio News Editor and author of the Andy Hayes mystery series. Mr. Welsh-Huggins discussed the Ohio Supreme Court s ruling in State v Broom, a decision stating that the state is not barred from carrying out time has been covering court cases. When he first started at the AP, he would have to walk to the Court, pick up cases, figure out which ones to write on, and walk back. Sometimes the Public Information Office would a sentence of death when a prior attempt to execute was unsuccessful. He noted that the AP s first story was released within 20 minutes of the court s announcement of the decision at 9 a.m. Within 36 minutes of the court s announcement a second, longer story was released. Only then did Mr. Welsh-Huggins read the entire ruling. The final story was then released at 12:50 p.m. Mr. Welsh-Huggins came to the AP and Columbus in 1998, and since that roll into the Statehouse press room, where he worked, and set down copies of decisions. How have things changed? The Ohio Supreme Court and Court of Claims now has a Case Notification Tracker that allows reporters to sign up for news alerts, and the federal courts have alerts through PACER, each of which are real-time alerts. Franklin County, where Columbus is located, has a similar notification system. How to decide what to put on the wire? The AP is always covering the biggest stories of the day, including criminal-justice cases: the state s gay-marriage ban, the exotic-animal law, Planned Parenthood funding, payments to charter schools, voting rights, Amish beard-cutters, Ohio State University Marching Band director, dash-cam and body-cam recordings, death-penalty cases, and electric-utility rate plans. 5 How does the AP develop stories? Taking the case of Romell Broom, who survived an attempt to put him to death, he begins with the oral argument. Although the court now streams the arguments, Welsh-Huggins sits in the courtroom and records the argument. The day after the argument, he writes two different versions of the outcome: one to prohibit a second attempt at execution to proceed and one that allows a second attempt to proceed. It s fairly common for Welsh-Huggins to call the public-information office at the court, but he will also call a judge if he needs help in understanding a case. But it isn t common for a Supreme Court justice to call, although once Chief Justice Moyer called him and other reporters to explain a case in which the court held that the death penalty had been improperly imposed because the crime had not occurred in Ohio. In response to questions, Welsh-Huggins indicated that he is limited as to word count. Normally an article is 400 to 500 words, partly due to the public s use of mobile news. When asked whether anything

6 in a ruling helps reporters, he noted that headnotes and court summaries help. He said it is sometimes hard to determine what a ruling is in terms of whether a justice is dissenting or concurring. In response to a question about how closely he follows his real life in his fictional books, Welsh-Huggins said he does not create characters based on real-life people, although some of his fictional characters are a composite of people he has met. He is not an attorney, but has picked up much of his legal knowledge from his years as a reporter. Regarding his book about the death penalty, No Winners Here Tonight, Welsh-Huggins explained it came about after a justice who had helped write the death-penalty law began to question the law. Welsh-Huggins spent 3 years analyzing 22 years of death-penalty indictments. He found over 1,000 capital indictments, but the vast majority were plea bargained or dismissed. Welsh-Huggins believes that the death penalty is not implemented fairly in the state. AP did a series, and he decided to turn that into a book about the death penalty in the state. A lot has changed: there are now fewer death penalties being imposed and there are no drugs are available to carry out a death sentence. 2. Reporting Judicial Opinions in a Frontier Setting the Ohio Experience, Presented by Donald F. Melhorn Jr., Of Counsel, Marshall & Melhorn; formerly Adjunct Professor of Law, University of Toledo College of Law. Mr. Melhorn brought a sacred relic : the first volume of American Case Law Reports. The Connecticut legislature ordered the state s judges to provide written explanations of their rulings. Both the content and the use of the reports were uniquely American. English law did not give reasons for the rulings: we do not know whether the Rule in Shelley s Case actually decided Shelley s case. Reporting there grew out of note taking in lectures for personal use that was 6 eventually made available to others. Institutional structures of appellate review were poorly developed in the English system. But the American structure was different. While the early bar was fragmented and there was little legal education for decades, the people had unprecedented needs for legal rules regarding money, real property, and debts. The Case Law Reports attempted to make rulings intelligible to all. Ohio Unreported Judicial Decisions Prior to 1823 was a publication of Ohio decisions also of widespread common concerns, such as grand jury proceedings, taxes, banks, and courts power to judge the constitutionality of acts of the state legislature. Melhorn discussed an early Ohio case holding an act unconstitutional that led to debates about judicial review of legislative acts: the judges opinions were fully reported in a city newspaper. The debates led to impeachment proceedings against an Ohio Supreme Court justice. The legislature considered quitting. But the Supreme Court was reversed by the bar. A declaration was signed by members stating that the bar would not recognize the judicial decision. The legislature then attempted to replace judges. The conflict became destructive. By 1812, the system became so chaotic that the attempt to replace was repealed. Ohio s attempts were distinct from the federal development of the judicial system because of the public s involvement and interest in the conflict. By 1812, war had begun. Former legal professionals won acclaim on the battlefield, including the almost impeached Supreme Court justice. Ohio s constitution until 1852 required an itinerant Supreme Court, and only a couple of justices could sit on a case. This prevented the reporting of decisions which might be the decision of only one or two justices. This led to a law requiring all mem-

7 bers of the Supreme Court bench to sit en banc after riding the circuit, as well as the publishing of those en banc decisions by an appointed Reporter. The memoranda of those decisions were then sent to the Reporter to be licked into shape as opinions. The Reporter did not hesitate to supplement opinions and in some cases even indicating that the reported decision would say nothing because he believed that the decision was wrong. But the explanations of the court s rulings put Ohio in the mainstream of decisional law. Decisional reporting of the controlling opinions of the state supreme court was vital to the settlement of the United States. 3. How to Cope with Burnout and Compassion Fatigue. Presented by Scott R. Mote, Executive Director, Ohio Lawyers Assistance Program. Stress in the legal field starts early and keeps on going. Analytical thinking taking nothing at face value, constantly questioning whether one is sure leads to continued stress. Law school introduces the student to stress, and clients rely on attorneys to get it right. In the book Lawyer, Heal Thyself, the author notes that many go to law school to change the world. But then they are told to start thinking about what they are going to get for themselves to climb over each to other to get the best car or the plane. It s hard to work for the client that flies off to a weekend retreat while the attorney is working that weekend. An assessment of law students before they start the first year shows 10 percent are diagnosable with mental illness: depression, anxiety, hostility, paranoia, and obsessive-compulsive disorder. After the first year, that number rises to 32 percent. And after the third year, it s 7 at 40 percent. And that percentage never goes back to pre-law-school levels. Part of the culture of law school includes increased consumption of alcohol. About twenty percent of lawyers/judges have an alcohol problem, compared to 10 percent in the general population. Stress increases as lawyers enter practice: difficulty sleeping, relationship issues, controlling attitude appear. The pressure has increased now that instantaneous decisions need to be made, i.e. answer the immediately, respond by fax, etc. The best thing Mr. Mote has found to deal with the increased stress is the Serenity Prayer. Just saying it doesn t get one there: you must take the time to really live it. Set boundaries. It is hard for attorneys to admit that they can t fix it all or admit that they need help. Gambling, sex, drugs, porn, overwork, over- or under-eating, and neglect of self all become ways to avoid what is going on in their practice. Attorneys need to learn to make themselves comfortable rather than to please others. When a person listens to negative things, the brain reacts as if the negative stuff is happening right now. After 10, 20 or 30 years of negativity, the brain has accumulated a large amount of negativity. Do not sacrifice personal well-being. Mote urged attorneys to understand what compassion fatigue is and not to be afraid to show that they might not be in control of everything.

8 Find the right person a spouse, a coworker, a confidante. Exercise regularly, get adequate rest, eat right. Simplify. Learn that it is okay to say no. And if you are overwhelmed, get professional help. Recognizing and caring for one s own needs is a wise investment. Coping strategies are the ABCs. Awareness of one s own needs, limits, emotions and resources. Take time to be a human being and not just an attorney. Balance don t overdo work, sleep, or play. Connection to oneself and to others. There must be something larger than oneself. 4. The Legal Writer: How to Write and Edit Well. Presented by Mark Painter, formerly Judge of the Hamilton County Municipal Court and Court of Appeals and the United Nations Appeal Tribunal. Judge Painter argued that there are two things wrong with most legal writing: one is form, the other is content. Despite word processing, attorneys still make the form of their documents look terrible. How did legal writing become so bad? Americans don t write well. There are urban legends of writing lots of rules that people believe exist that don t exist. For example, a writer can start a sentence with and or but and can split an infinitive. No one came up on the first day of law school and told students that they must write like a lawyer. But as students, attorneys internalized bad writing from old cases. Painter gave several examples from cases and the Ohio Revised Code. There are three ways to learn to be a good writer. One, write a lot. Two, read a lot of good writing. Three, have an editor. Painter noted that the Ohio Reporter s office helped him to be a good writer by editing his opinions when he was first a judge. He also advises using readability statistics in Microsoft Word as a guide, saying that the average sentence should be 18 words long and the grade level should be below high school level. He tells attorneys to read their briefs to non-attorneys to make sure that it is understandable. Other writing errors he pointed out were using appellant or appellee rather than a person s name (no one comes in an attorney s office wanting to be an appellant!) and using too many dates. He advises never using a specific date unless it s necessary. He notes that Bryan Garner says that an attorney s most noxious habit is using a parenthetical numerical seven (7). He also advises using headings because they are sign posts. An opinion without headings is like a book without chapters. Painter advises using a font that is readable. Times New Roman is not a 8 good readable typeface. Georgia font is designed for a laser printer and the screen. Arial is good for headings. Don t use all capitals it s very difficult to read. Painter suggests looking at Garner s book on superstitions. He then talked about how spellcheck is a great tool, but it isn t always accurate. He advises using the serial comma: it can hurt if not used, it can t hurt if it is used. Only the AP Manual does not require it all other grammar books require it. Dash/parenthesis/comma are all degrees of emphasis; the most uncommon, the dash, is the greatest degree. In the end, write well and do justice. Friday, August 5, Lexum. Presented by Daniel Poulin, President. Lexum has packaged a product called Decisia that is now used by about 40 clients. Those clients are not technical people and were not used to publishing on the Internet, so Decisia helps them report opinions. Poulin noted that courts are in charge of making the law and reporting those decisions. To achieve those goals, reporters prepare the opinions. Courts are using fewer books and are making opinions accessible online. The user wants something that is accurate and that can be published rapidly. The user might also want something that is comprehensive, that is, all of the court s opinions, as well as the ability to browse and to search. Poulin then demonstrated Decisia. It is built to be used on a court s website. It has various filters that can be used in searching. John Juroszek asked about Lexum s experience with working with an IT

9 department. Poulin believes that IT departments can work with them: Decisia was created so individual IT departments did not have to create a new product. Decisia is mainly used now in Canada. 6. Free the Law. Presented by Adam Ziegler, Harvard University Innovation Lab. Mr. Ziegler last appeared before the ARJD two years ago to talk about Perma.cc. He stated that his lab is interested in legal education. Today s talk was about the Caselaw Access Project, an attempt to digitize all the historical state and federal case law in the United States and put them online for the public to access. Court decisions are the root of the common-law system and access to them is essential. As part of the project, Ziegler has been able to explore some of the early reporters notes and old volumes and has found interesting statements of mission about why access to case law matters. Today, access means web access as well as print: to be online and widely available. Some 43,000 volumes of decisions going back to the pre- Revolutionary era are being transferred from print to digital. Ziegler was asked if any of the books are copyrighted. He said that the decisions are public domain, so any proprietary information is extracted. First, the books needed to be found. They were in a warehouse outside Boston and they weren t all in order. The books are analyzed to see if pages are missing, to determine the volume, and to track the metadata about the books. They have come across some interesting artifacts: an 1867 Georgia Reports told the story of a reporter who had been in the Confederate Army and who had to reconstruct the information for the volume from before the Civil War. The books are scanned as follows: first, the bindings are removed; then, the pages are loosened; finally, the pages are scanned. The books are not rebound, but the pages are placed in the binding and vacuum sealed before storage. OCR images are created and a standardized scheme is ap- 9

10 plied to find the court, volume number, etc. Anything editorial in nature is extracted. The lab is focused on the official version of each case. Extracted material is retained in case a jurisdiction indicates that the material is official rather than editorial. The lab is working with Ravel, an analytics company that is funding the project and making the information accessible. The only limitation is that Ravel can restrict a single person from accessing more than 500 cases a day. The lab has the ability to have Harvard provide access as well. But the project can t yet provide bulk access to the data until The lab has run experiments that include word clouds, graphing, a software text that generates limericks, and word-frequency explorers. 10

11 Product Review WordRake Editor s Note: At this year s annual meeting, Leah Walker mentioned that one of the judges at her court (the Colorado Court of Appeals) attended a CLE where a speaker talked about the WordRake software. At the request of this judge, Leah and Cecily Nicewicz were asked to have the Reporter s Office try a free trial of this software. What follows is the memorandum they prepared outlining their findings. * * * WordRake says that it edits for clarity and brevity. To test this claim, we downloaded the software and ran it on nine previously edited opinions. Here is a summary of the product and our impressions of its utility. I. User Experience WordRake is user-friendly. Downloading it adds a tab in Microsoft Word. To use it, a user highlights all of the material he or she wants raked and then hits the Rake button under the WordRake tab: The program makes its suggested edits in Track Changes: Because COA users are already familiar with receiving edits in Track Changes, understanding and using WordRake is straightforward. II. Strengths WordRake is good at finding what could be considered wind-up or filler language (but could also be considered essential transitional and introductory terms). Of the documents we ran through WordRake, this page was the most heavily edited (reporter edits appear in red, WordRake s in purple): 11

12 Running WordRake on an opinion could be a good check for certain types of wordy usage. However, the software s weaknesses overshadow its usefulness. III. Weaknesses WordRake s flaws fall into three categories: (1) deleting parts of legal terms; (2) deleting or changing words necessary for comprehension; and (3) skipping over language a non-computer editor could find unclear: (1) Deleting Parts of Legal Terms: (2) Deleting and/or Changing Necessary Words: 12

13 (3) Skipping Over Language a Human Editor Could Find Unclear: IV. Other Issues We have a few usability concerns. First, the process of downloading the software was difficult because WordRake s communications get flagged as spam, and it took two hours for the Spam Quarantine to send the allowing delivery of the trial subscription message. Second, keeping the software up to date might be problematic because the updates could get blocked by Judicial s firewall. Finally, the Microsoft Word tab that WordRake installs remains even after the trial subscription expires, and the process of uninstalling the product was not straightforward. Additionally, we are concerned about the timing of the use of WordRake, particularly if chambers does not carefully review WordRake s edits. If chambers uses WordRake before sending the opinion to us, we may have difficulty understanding the opinion as legal terms are deleted. If chambers uses WordRake after sending the opinion to us, we will not have a chance to correct any problems. Cost is also an issue. A one-year WordRake subscription is $129 (with tiered volume pricing starting at 5% off if we purchased 5 or more subscriptions). We do not think WordRake s utility justifies this cost. V. Conclusion We do not recommend purchasing or using WordRake. Of its advertised uses, WordRake does a fair job of editing for brevity but falls short of its promise to edit for clarity. 13

14 Education Committee Lake Tahoe speaker ideas abound. Brandee will talk about Nevada s new Court of Appeals (COA). We are hoping to arrange a whole panel of folks who worked on putting the new court together. Since the meeting is about 25 minutes from the court building, the Chief Judge of the COA, at least one justice on the supreme court, and the clerk could all possibly attend and discuss the whole endeavor. Since the Supreme Court and Capitol building are only a half hour away, we are thinking of doing a tour of those facilities. We are also hoping to have a panel of law clerks discuss how Reporters can help them produce their best work. Finally, a speaker from the nearby National Judicial College in Reno is another possibility. I also had a suggestion from Sandra Grosko, Clerk of the Supreme Court of Ohio, that we do a combined session with reporters and clerks. She suggested a panel discussion about how clerk s and reporter s offices interact and volunteered to be on the panel. I am trying to figure out if our meeting overlaps with the clerk s meeting. If not, Sandra and I were thinking that the panel could speak at both meetings, which would mean that whichever speakers from the ARJD agree to be on the panel would have to arrive early/leave late. I ve talked to my clerk and she and I are both willing to attend both panels. Any volunteers welcome! I m looking at doing a sort-of breakout session where new reporters are paired with seasoned reporters to discuss editing and dealing with judges and clerks one on one or maybe small groups. That idea came up in Nashville and it sounded promising. Let me know if you think it would be welcome. There was also an idea of having a panel discussion on how reporters create style manuals. Guam is looking to create one and Geri Cepeda thought others might benefit from advice on that issue. 14 Geri and I also talked at some length about the idea of having a tech-focused meeting in 2019, particularly if the Seattle/Tacoma area is selected as the site (given that Rick Neidhardt would be president that year). We thought we could have sessions on how to make the most of Microsoft Office shortcuts and macros (building a little on the presentation Derrick Lindsay gave in DC), tips on how to work with IT people to understand their language and better explain our needs to them. In light of an article I recently came across on using emojis in briefs and court documents, I thought a session on if/how to include emojis in opinions would be useful as well. I know we haven t selected the site yet, but I like the idea of having a tech-focused meeting. Let me know what you think of that. I appreciate any and all suggestions for topics and/or speakers for Lake Tahoe and/or Toronto! Leah Walker

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17 Officers President: Brian Redmond, Massachusetts Supreme Judicial Court and Appeals Court Vice President: Mary Joe Beck, Supreme Court of Ohio Treasurer: Kevin J. Loftus (Ret.), Supreme Court of Connecticut Secretary: Rick Neidhardt, Washington State Supreme Court Past President: Brandee Mooneyhan, Nevada Supreme Court and Court of Appeals Committee Chairpersons Annual Meeting: Brian Redmond, Massachusetts Supreme Judicial Court and Appeals 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: François Boivin, Brian Redmond, Mary Joe Beck, and Patrick and Brandee Mooneyhan for their photo contributions. Volume XXXV, No. 2 December 2016 ARJD Contact Information ARJD Web site: 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