Motions, and Orders, and Briefs! Oh my! March 26 April 12

Transcription

1 Motions, and Orders, and Briefs! Oh my! March 26 April 12

2 What is a docket? What is on a docket? Why do you care? Which dockets are available?

3 What is a docket? A docket is a list of every case before a court. A docket sheet is the record in which a court clerk notes a case s number, the names of the parties involved, and all the proceedings and filings in a case. Meliah Thomas, Comment, The First Amendment Right of Access to Docket Sheets, 94 Cal. L. Rev. 1537, 1538 (2006).

4 What is a docket? In most federal and state courts, for example, the number for a criminal case contains the letters CR.... [Similarly] civil case numbers [often] contain the designation CV. In many federal district courts, the case number also includes the presiding judge s initials or a code indicating the judge assigned to the case. Meliah Thomas, Comment, The First Amendment Right of Access to Docket Sheets, 94 Cal. L. Rev. 1537, 1541 (2006).

5 Why Do You Care? By examining a docket sheet, [you] can determine: -Whether a case is pending or has been resolved? -Identify the documents that have been submitted to the court. -Find out when hearings and arguments will be held. Meliah Thomas, Comment, The First Amendment Right of Access to Docket Sheets, 94 Cal. L. Rev. 1537, 1538 (2006).

6 What is on a docket??? See Handout!

7 What is the docket number for the original trial? This Case Prior Case

8 What is the date of the trial court decision? When was Mr. House s Notice of Appeal filed? When was the appeal docketed? Docketed Decision NOA

9 Who represents Mr. House? Can you find their contact info? Who represents Mr. Bell? Can you find their contact info?

10 Did Mr. House request an expedited appeal? If so, was his request granted?

11 Not all documents are available for direct download from the docket!

12 What is a docket? These entries, although brief, show the nature of each paper filed or writ issued and the substance of each order or judgment of the court. Docket sheets thus do not divulge the substance of the documents filed in a particular case; rather, [t]hey merely note their presence. Meliah Thomas, Comment, The First Amendment Right of Access to Docket Sheets, 94 Cal. L. Rev. 1537, 1541 (2006).

13 What is a docket? Kind of like LRI/LegalTrac, or a treatise s index, or a treatise s table of contents! = information about the underlying source document(s) (e.g., orders, motions, transcripts, etc.) but not the actual information (from the underlying source document) itself.

14 Can you guess? -First item on trial court level civil docket is??? -First item on trial court level criminal docket is??? -First item on appeal is??? -First item on bankruptcy docket is???

15 Can you guess? -First item on trial court level civil docket is??? -Complaint -First item trial court level criminal docket is??? -Indictment & Information -First item on appeal is??? -Varies (cert. pet., pet. for habeas, etc.) but indicates appeal has been filed -First item on bankruptcy docket is??? -Ch.7, 11, etc. (In?)voluntary Petition

16 Which dockets are available? All state and federal court records are available to the public unless access to them is restricted by: -federal law -state law -court rule -court order -case law Christopher S. O'Byrne, Public Access to Court Records, Law Library News (May 8, 2006),

17 Which dockets are available? Access to court records is usually restricted: -on the basis of privacy (e.g., adoption, or Social Security disability claims, or wealthy client who does not want to be embarrassed having dirty laundry aired in public), or -safety and law enforcement risks (e.g., records that could be used to jeopardize an ongoing criminal investigation or harm victims, defendants, and witnesses). Susan Lyons, Free PACER Balancing Access and Privacy, 13 AALL Spectrum 30 (July 2009) ; Meliah Thomas, Comment, The First Amendment Right of Access to Docket Sheets, 94 Cal. L. Rev. 1537, (2006); Christopher S. O'Byrne, Public Access to Court Records, Law Library News (May 8, 2006),

18 Why Do You Care? Online court docket research has become an important tool for investigative research on individuals, experts, organizations, and business entities. [You can] use docket databases to identify litigation and other adverse proceedings (liens, judgments, and bankruptcies) involving prospective clients, adversaries in litigation, and people or companies your existing clients may wish to do business with. Warner J. Miller, Trial Court Docket Research Tools, 26 Legal Information Alert 1, 6 (July-Aug. 2007).

19 Why Do You Care? Practical Application 1: Q: Identify for me all patent cases litigated before Judge Coughenour of the Western District of Washington in which the case proceeded far enough for jury instructions to have been submitted and ruled on. Warner J. Miller, Trial Court Docket Research Tools, 26 Legal Information Alert 1, 4 (July-Aug. 2007).

20 Why Do You Care? Practical Application 1: A: Just a few years before, no electronic tool existed that could answer this question.. Indeed, no one (with the possible exception of Judge Coughenour himself) could have answered the question by any means without a prodigious expenditure of time and money. Warner J. Miller, Trial Court Docket Research Tools, 26 Legal Information Alert 1, 4 (July-Aug. 2007).

21 Why Do You Care? Practical Application 1: A: [However, with electronic access to the docket via LexisNexis CourtLink] it was a simple matter to search for the keyword instructions on the docket sheets of patent cases presided over by Judge Coughenour of the Western District of Washington. A quick look at the docket sheets revealed the two cases in which Judge Coughenour had, in fact, ruled on jury instructions proposed by the parties. Thus,... [electronic access to the docket] rendered a hitherto impossible research task easy to perform in a few minutes time.... Warner J. Miller, Trial Court Docket Research Tools, 26 Legal Information Alert 1, 4 (July-Aug. 2007).

22 Why Do You Care? Practical Application 2: Reviewing another attorney s successful argument, and the supporting law, is a great way to help formulate your own legal research plan and to develop your own winning legal argument. When you must write a brief to support or oppose a motion, complaint, answer, reply, or other pleadings, always remember that someone else has probably already done so for an analogous situation. Christopher S. O'Byrne, Public Access to Court Records, Law Library News (May 8, 2006), ws/2006/may8.html.

23 Why Do You Care? Practical Application 2: Thus, the question that you should be asking yourself is not, Why should I access court records? but, How do I access court records? If you work at a law firm, government agency, or public interest group, your employer likely has its own searchable document bank database specifically tailored to its practice areas. Christopher S. O'Byrne, Public Access to Court Records, Law Library News (May 8, 2006), ws/2006/may8.html.

24 Which Dockets are online? Federal: -SCOTUS -All circuits of the U.S. Court of Appeals, -All of the Federal District Courts, -All Federal Bankruptcy Courts of every state and U.S. territory. Warner J. Miller, Trial Court Docket Research Tools, 26 Legal Information Alert 1 (July-Aug. 2007); PACER Web Links,

25 Which Dockets are online? State: It varies! -Wisconsin was one of the first states to provide online statewide access to court dockets [in 1999]. -[More than] 10 years later, few other states provide a single uniform database for their entire state. -Arizona operates a statewide system but not all the counties have yet made the migration to the online system. Bev Butula, Online Access to Circuit Court Dockets, 80 Wis. Law. 20, 21 (Oct. 2007).

26 Which Dockets are online? State: It varies! Many states have not implemented any online public access to court dockets.... [Others limit the amount of information available]. Connecticut has offered access to civil cases for quite some time but just added criminal dockets in 2007, and it limits the criminal information to only the daily dockets. Bev Butula, Online Access to Circuit Court Dockets, 80 Wis. Law. 20, 21 (Oct. 2007).

27 Which Dockets are online? State: It varies! Hawaii offer[s] databases covering only civil, probate, and family cases. Alabama and Colorado offer complete to nearlycomplete county coverage, but the courts use commercial vendors and access is fee-based. Bev Butula, Online Access to Circuit Court Dockets, 80 Wis. Law. 20, 21 (Oct. 2007).

28 Warner J. Miller, Trial Court Docket Research Tools, 26 Legal Information Alert 1, 4 (July-Aug. 2007); Which Dockets are online? State: It varies! More than 3,000 counties in the 50 states... nationwide search capability at the state court level remains a distant dream...

29 How can you access dockets? The easiest (but not cheapest) way to access a docket is to pull up a controlling case on LexisNexis or Westlaw and see if the docket is linked. Melendez-Diaz v. Massachusetts, 129 S. Ct (2009). However, that only works for cases that have been decided Most lawsuits and other legal proceedings never make it to trial. For those, and for current proceedings, you need direct access to the docket.

30 I use PACER primarily to retrieve docket sheets for which I already have the docket numbers and to pull documents (e.g., orders, motions, transcripts, etc.) from those docket sheets. PACER does all of this for the low, low price of $0.08 per page, subject to a 30-page cap. In other words, you could download or print the [hundreds of pages of the] entire docket sheet of the Enron bankruptcy for $2.40 [that s docket sheet only though not the underlying documents themselves]. Warner J. Miller, Trial Court Docket Research Tools, 26 Legal Information Alert 1, 13 (July-Aug. 2007).

31 PACER is great for accessing known dockets, but not so great for actual research purposes. Very limited search options: -Docket Number -Date -Nature of Suit -Cause of Action -Party Name

32 [Paul] House v. [Ricky] Bell 6th Cir. Docket #: Docketed: 09/25/2008 Nature of Suit: 3535 Habeas Corpus - Death Penalty Appeal From: Eastern District of Tennessee at Knoxville MOTION TO STRIKE APPELLEE S FOURTH BRIEF Professor is curious as to basis for Mr. House s argument that the Sixth Circuit would have power to stop the state trial from proceeding and has requested this motion.

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36 If you know the docket number If you do not know the docket number

37 Advanced Search Page

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39 To access full docket Case is now concluded (was still pending at time docket originally obtained on 04/01/ 09).

40 Full Docket

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42 CourtLink (LexisNexis) & CourtExpress (Westlaw) CourtLinkSearch.pdf wlawdoc/wlres/courtx06.pdf

43 CourtLink (LexisNexis) & CourtExpress (Westlaw) Partially available for law students Partially available for law students Partially available for law students CourtLinkSearch.pdf Partially available for law students wlawdoc/wlres/courtx06.pdf

44 CourtExpress (Westlaw) [Paul] House v. [Ricky] Bell 6th Cir. Docket #: Same example BUT cf. w/ PACER reverse chronological current through [last update] Send Runner to the Court

45 Litigation Tab Click to locate and add Litigation Tab (if not already enabled)

46 Westlaw CourtExpress

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49 Coverage

50 Note (although not needed for this search) Key Search Terms are not available on PACER

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53 Try Help, contact your Westlaw Rep., or go to PACER

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56 See the Training Demos to learn more about CourtExpress

57 CourtLink (LEXIS) [Paul] House v. [Ricky] Bell 6th Cir. Docket #: Same example BUT cf. w/ PACER Chronological current through [last update]

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62 See the Training Information to learn more about CourtLink

63 State Court not on CourtLink or CourtExpress??? What do you do???

64 Court Web sites

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66 We do not know which Division, so must check both!

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69 ABA article on Judge Dean Whipple! What is the current status of the case (now on remand)??? 1. Find the 8th Cir. decision the article mentions 2. Find the docket for the 8th Cir. decision. 3. Access the docket for the 8th Cir. decision 4. Find the docket # for trial ct. 5. Look up trial ct. docket. I kept telling you to produce stuff, expert stuff. You ducked. You wove. You did everything to keep from producing them. You go to the 8th Cir. They tell you to produce them, and you still goddamn don t produce them. Now what the hell do you not understand? You must produce them.

70 Citation format: Docket [pending/unreported case] As far as citation format goes, the relevant rules for citing the whole case (it s different if you want to cite a specific item on the docket) are R Pending and Unreported Cases and R Date or Year. [case name] [full docket number] [court and date of most recent major disposition per R.10.5(c)] If you re unsure about the format for full docket number check court cases, bar journals, and other professional, practice-oriented and academic publications from the case s jurisdiction for examples of citations to dockets from that jurisdiction.

71 Citation format: Docket [pending/unreported case] Major disposition might seem subjective to you, but according to R. 10.5(c) Pending cases and cases dismissed without opinion: Major dispositions include only: -the initial filing, whether in the trial court or on appeal (e.g., filed, appeal docketed, petition for cert. Filed ), -oral argument ( argued ), and, -for cases dismissed without opinion, the dismissal ( dismissed ).

72 Citation format: Docket [pending/unreported case] By examining the docket, you can determine which date to use. There's no way to cite something like this without actually seeing the docket (unless you already know the date of the most recent major disposition).

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74 Citation format: Docket [pending/unreported case] date of the most recent major disposition (as of March 5, 2009) = September, Green v. Garriott, No. 1 CA-CV (Ariz. Ct. App. argued Sept. 17, 2008). (Citation accurate as of March 5, 2009)

75 Citation format: Specific item on a docket [unreported case] See R Briefs, Court Filings, and Transcripts for more info! [F]ull name of the document as it appears on the filing... abbreviated only according to R (c), followed by a pinpoint citation, if any. The full case citation and the docket number should follow the name of the document and the pinpoint citation [if any].

76 Citation format: Specific item on a docket [unreported case] See R Briefs, Court Filings, and Transcripts for more info! [C]ite the case according to R (c), but the date in the parenthetical should be the date on which the filing was made, regardless of subsequent dispositions (e.g., oral argument). ).... [I]nclude the docket number... as the citation... Brief of Petitioner-Appellant at 48, United States v. Ali Saleh Kahlah Al-Marri, No (7th Cir. Nov. 12, 2003).

77 Citation format: Specific item on a docket [reported case] See R Briefs, Court Filings, and Transcripts for more info! [F]ull name of the document as it appears on the filing... abbreviated only according to R (c), followed by a pinpoint citation, if any. The full case citation and the docket number should follow the name of the document and the pinpoint citation [if any].

78 Citation format: Specific item on a docket [reported case] See R Briefs, Court Filings, and Transcripts for more info! If a decision has been rendered cite the case according to R (a).... [I]nclude the docket number... Parenthetically... Complaint at 17, Kelly v. Wyman, 294 F. Supp. 893 (S.D.N.Y. 1968) (No. 68 Civ. 394).

79 The Future Lawyers want, and are willing to pay for, searchable trial court data for legal research tasks, for investigative research, and for business development efforts. Ultimately, we will be able to search more than just words on docket sheets, no matter how skillfully grouped by field. We want to search the full text of the documents listed on those docket sheets. Taking the first steps down that road are: Westlaw's State and Federal Trial Court Filings (FILINGS-ALL), and State Trial Court Orders (TRIALORDERS-ALL), and the BRIEFS, PLEADINGS, and MOTIONS files from LexisNexis Warner J. Miller, Trial Court Docket Research Tools, 26 Legal Information Alert 1, 9 (July-Aug. 2007).

80 Bibliography Bev Butula, Online Access to Circuit Court Dockets, 80 Wis. Law. 20 (Oct. 2007). Lyle Denniston, Horse-and-Buggy Dockets in the Internet Age, and the Travails of a Courthouse Reporter, 9 J. App. Prac. & Process 299 (2007) (although this article is not quoted in this slideshow, it is still quite informative). Susan Lyons, Free PACER Balancing Access and Privacy, 13 AALL Spectrum 30 (July 2009). Warner J. Miller, Trial Court Docket Research Tools, 26 Legal Information Alert 1 (July-Aug. 2007). Christopher S. O'Byrne, Public Access to Court Records, Law Library News (May 8, 2006), Meliah Thomas, Comment, The First Amendment Right of Access to Docket Sheets, 94 Cal. L. Rev (2006).