Not Using CALR Technology: Ethical and Liability Risks Is there an obligation to use CALR and the Web?


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Not Using CALR Technology: Ethical and Liability Risks Is there an obligation to use CALR and the Web?

  1. 1. Not Using CALR Technology: Ethical and Liability Risks Is there an obligation to use CALR and the Web? ©Professor Jon R. Cavicchi Originally Prepared for N.H. Bar Association CLE Franklin Pierce Law Center Last Updated 2009
  2. 3. The story survives of a hapless advocate in Elizabethan England who wrote a prolix brief. The court ordered that his head be put through a hole in the brief, which hung around his neck with the "written side outward." A warden then led him "bareheaded and barefaced round about Westminster Hall, whilst the Courts (were) sitting…” 1 George Spence, The Equitable Jurisdiction of the Court of Chancery 376-77 n.h (1846) (reporting 1596 case of Mylward v. Weldon).
  3. 4. Part of larger topic… <ul><li>Ethical issues & the new technologies </li></ul><ul><ul><li>Law office management </li></ul></ul><ul><ul><ul><li>Calendar systems </li></ul></ul></ul><ul><ul><ul><li>Time and billing </li></ul></ul></ul><ul><ul><ul><li>Conflict tracking </li></ul></ul></ul><ul><ul><ul><li>Document control & retention </li></ul></ul></ul><ul><ul><li>Attorney-client communication technology </li></ul></ul><ul><ul><ul><li>Phone </li></ul></ul></ul><ul><ul><ul><li>Fax </li></ul></ul></ul><ul><ul><ul><li>Email </li></ul></ul></ul><ul><ul><ul><li>Misdirected communications </li></ul></ul></ul><ul><ul><ul><li>Extranets </li></ul></ul></ul><ul><ul><li>Marketing & practice development </li></ul></ul><ul><ul><ul><li>Websites, email, discussion groups </li></ul></ul></ul><ul><ul><ul><li>Extra-Jurisdictional reach </li></ul></ul></ul><ul><ul><ul><li>List based on Withers, ETHLII MA-CLE S-24-i </li></ul></ul></ul>
  4. 5. Part of a larger subtopic… <ul><li>Ethical & Liability Risks of Research </li></ul><ul><ul><li>Fact research - 80% of research? </li></ul></ul><ul><ul><li>Outsourced legal research </li></ul></ul><ul><ul><li>How to bill legal research </li></ul></ul><ul><ul><li>Security of CALR searches (cookies, etc…) </li></ul></ul><ul><ul><li>Determining whether you are entitled to legal research costs and fees </li></ul></ul><ul><ul><ul><li>As part of judgment / appeal issue </li></ul></ul></ul><ul><ul><ul><li>Contracts </li></ul></ul></ul><ul><ul><ul><li>Statutory and rules </li></ul></ul></ul><ul><ul><li>Spectrum of legal issues that result from poor legal research </li></ul></ul><ul><ul><ul><li>Ineffective assistance of counsel </li></ul></ul></ul><ul><ul><li>Wrongful access to CALR </li></ul></ul>
  5. 6. A quick detour into billing issues <ul><li>1.5 Rule of Reasonableness </li></ul><ul><ul><li>fee customarily charged in the locality </li></ul></ul><ul><ul><ul><li>Charge CALR rate if you do time intensive manual research? </li></ul></ul></ul><ul><ul><li>Best and only source? </li></ul></ul><ul><ul><li>Not a profit center - no “markups” </li></ul></ul><ul><ul><li>Cost or overhead? </li></ul></ul><ul><ul><ul><li>Can’t pass along cost of print library except as part of hourly fee </li></ul></ul></ul><ul><ul><ul><li>Can’t charge the client to “get up to speed” </li></ul></ul></ul><ul><ul><ul><li>Can’t charge travel to distant law library </li></ul></ul></ul><ul><ul><ul><li>What to do with newer flat fee online services </li></ul></ul></ul><ul><ul><li>Costs plus “reasonable allocation of overhead directly associated” </li></ul></ul><ul><ul><ul><li>No double dipping </li></ul></ul></ul><ul><ul><li>Best practice </li></ul></ul><ul><ul><ul><li>Disclosure and agreement </li></ul></ul></ul><ul><ul><ul><li>Client driven </li></ul></ul></ul><ul><ul><ul><ul><li>Can’t contract away duty to know the law and to be able to make independent judgment </li></ul></ul></ul></ul>
  6. 7. Ethics research A few tools and strategies
  7. 8. 45K44 45K129 In 1993 West added Attorney-Client 112.50 Research of Law
  8. 11. Websites of national scope… <ul><li> </li></ul><ul><li> </li></ul><ul><li> </li></ul><ul><li> </li></ul>
  9. 18. Not Using New CALR Technology: Ethical and Liability Risks? Is there an obligation to use CALR and the Web? Typical lawyer answer…maybe!
  10. 19. Pierce Law teaches the “media mix” <ul><li>Print </li></ul><ul><li>Online </li></ul><ul><ul><li>Free </li></ul></ul><ul><ul><li>Low fee </li></ul></ul><ul><ul><li>Premium </li></ul></ul><ul><li>CD/DVD-ROM </li></ul><ul><li>Controlled and keyword approaches </li></ul><ul><li>Based on research objectives </li></ul><ul><li>CALR can be alternative or complimentary </li></ul>
  11. 20. Maybe? <ul><li>Depends on context of liability </li></ul><ul><li>Theoretically some niche practice might might not require CALR </li></ul><ul><ul><li>“ failure to perform adequate research” </li></ul></ul><ul><li>No direct NH or ABA authority </li></ul><ul><li>Cases from other courts point to the affirmative </li></ul><ul><li>Risk-based cost-benefit analysis </li></ul><ul><li>Best practices? </li></ul><ul><li>What is your agreement with your client? </li></ul>
  12. 21. Liability contexts… <ul><li>Ethics violations </li></ul><ul><li>Malpractice </li></ul><ul><li>&quot;Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. . . . Nevertheless, since the Rules do establish standards of conduct by lawyers, a lawyer's violation of a Rule may be evidence of breach of the applicable standard of conduct.&quot; ABA Model Rules Preamble, Part 20 (2002). </li></ul><ul><li>Sanctions </li></ul><ul><ul><li>Fed. Rule Civ.Proc. 11 and state equivalents </li></ul></ul><ul><li>Abuse of Process </li></ul><ul><li>Contempt </li></ul><ul><li>Getting “scolded” </li></ul><ul><ul><li>Public humiliation in reported decisions </li></ul></ul>
  13. 22. Four important spheres of lawyer self-governance regulating the conduct of lawyers. <ul><li>First, there are ethics rules adopted by each jurisdiction, usually based on the American Bar Association (&quot;ABA&quot;) Model Rules of Professional Conduct (&quot;Model Rules&quot;). </li></ul><ul><li>Second, there is enforcement of ethics rules through state disciplinary processes. </li></ul><ul><li>Third, there are court proceedings relying on ethics rules for enforcing clients' rights against lawyers in motions to disqualify or professional malpractice actions. </li></ul><ul><li>Fourth, there are ethics opinions in which a bar association committee, bar association counsel, office of disciplinary counsel, or some other entity interprets the rules and provides guidance to lawyers seeking to comply with prevailing ethical rules. </li></ul><ul><ul><li>15 Geo. J. Legal Ethics 313 (Winter 2002) </li></ul></ul>
  14. 23. Scolding throughout all types of cases, for example… <ul><li>Before proceeding further, the Court notes that this case involves two extremely likable lawyers, who have together delivered some of the most amateurish pleadings ever to cross the hallowed causeway into Galveston…the Court is now faced with the daunting task of deciphering their submissions. …. the Court cannot even begin to comprehend why [cases were] selected for reference. It is almost as if Plaintiff's counsel chose the opinion by throwing long range darts at the Federal Reporter (remarkably enough hitting a nonexistent volume!). </li></ul><ul><ul><ul><ul><li>Bradshaw v. Unity Marine, 147 F.Supp.2d 668 (S.D. Tex. 2001) </li></ul></ul></ul></ul>
  15. 24. Not citing correct law… <ul><li>Poor analytical skills? </li></ul><ul><li>Poor research skills? </li></ul><ul><li>Theme is a presumption that lawyer did not diligently find the law… </li></ul>
  16. 25. Tour of authorities…
  17. 26. NHRPC 1.1 Competence <ul><li>A lawyer shall provide competent representation to a client. </li></ul><ul><li>(b) Legal competence requires at a minimum: </li></ul><ul><li>        (1) specific knowledge about the fields of law in which the lawyer practices; </li></ul><ul><li>        (2) performance of the techniques of practice with skill; </li></ul><ul><li>        (3) identification of areas beyond the lawyer's competence and bringing those areas to the client's attention; </li></ul><ul><li>        (4) proper preparation; and </li></ul><ul><li>        (5) attention to details and schedules necessary to assure that the matter undertaken is completed with no avoidable harm to the client's interest. </li></ul><ul><li>(c) In the performance of client service, a lawyer shall at a minimum: </li></ul><ul><li>        (1) gather sufficient facts regarding the client's problem from the client, and from other relevant sources; </li></ul><ul><li>        (2) formulate the material issues raised, determine applicable law and identify alternative legal responses; </li></ul><ul><li>        (3) develop a strategy, in collaboration with the client, for solving the legal problems of the client; and </li></ul><ul><li>        (4) undertake actions on the client's behalf in a timely and effective manner including, where appropriate, associating with another lawyer who possesses the skill and knowledge required to assure competent representation. </li></ul>
  18. 27. NHRPC 1.2 Representation     When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall advise the client regarding the relevant limitations on the lawyer's conduct.
  19. 28. NHRPC 1.3 Diligence (a) A lawyer shall act with reasonable promptness and diligence in representing a client. (b) Performance by a lawyer is prompt and diligent when:         (1) it is carried out in the manner and within the time parameters established by the agreement between the client and the lawyer; however, the lawyer may not rely upon the terms of an agreement to excuse performance which is not prompt and diligent in light of changes in circumstances, known to the lawyer, which require adjustments to the agreed upon schedule of performance.         (2) in all other matters of representation, it is carried out with no avoidable harm to the client's interest nor to the lawyer-client relationship.
  20. 29. NHRPC 1.4. Client Communications <ul><li>(b) A lawyer shall explain the legal and practical aspects of a matter and alternative courses of action to the extent that such explanation is reasonably necessary to permit the client to make informed decisions regarding the representation. </li></ul>
  21. 30. NHRPC 1.5. Fees <ul><li>(a) A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee… </li></ul>
  22. 31. NHRPC 2.1 In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.
  23. 32. NHRPC 3.1. Meritorious Claims and Contentions A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.
  24. 33. NHRPC 3.3 Duty of Candor A lawyer shall not knowingly…fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel Courts have read this as what the lawyer should know!
  25. 34. Rule 1.1 tells us… <ul><li>Knowledge </li></ul><ul><li>Skill </li></ul><ul><li>Thoroughness </li></ul><ul><li>Preparation </li></ul><ul><li>Well-established obligation to make reasonable efforts to research the law under Rule 1.1 </li></ul><ul><li>No rule, opinion, case explicitly requires use of CALR </li></ul><ul><li>Traditionally, “reasonableness” of legal research determined by looking at what an attorney of ordinary skill and knowledge would do in similar circumstances. </li></ul>
  26. 35. Comment to ABA Rule 1.1 <ul><li>Comment 5 </li></ul><ul><ul><li>Competent handling of a particular matter includes inquiry into any analysis of the factual and legal elements of the problem, and the use of methods and procedures meeting the standards of competent practitioners </li></ul></ul><ul><ul><li>Is the standard of conduct the bare minimum? </li></ul></ul>
  27. 36. A real problem… <ul><li>Failure to know or apply the law is the largest single category of complaints. </li></ul><ul><ul><li>ABA Standing Committee on Lawyer’s Professional Conduct, Legal Malpractice Claims in the 1990s at 14 </li></ul></ul>
  28. 37. Smith v. Lewis 530 P2d 589 (Cal. 1975) <ul><li>Malpractice context </li></ul><ul><li>As the jury was correctly instructed, an attorney does not ordinarily guarantee the soundness of his opinions and, accordingly, is not liable for every mistake he may make in his practice. He is expected, however, to possess knowledge of those plain and elementary principles of law which are commonly known by well informed attorneys, and to discover those additional rules of law which, although not commonly known, may readily be found by standard research techniques . </li></ul>
  29. 38. [W]e believe an attorney assumes an obligation to his client to undertake reasonable research in an effort to ascertain relevant legal principles and to make an informed decision as to a course of conduct based upon an intelligent assessment of the problem. In the instant case, ample evidence was introduced to support a jury finding that defendant failed to perform such adequate research into the question of the community character of retirement benefits and thus was unable to exercise the informed judgment to which his client was entitled.
  30. 39. Has CALR become a standard research technique? <ul><li>Most lawyers use CALR </li></ul><ul><ul><li>93% in one ABA Legal Technology Resource Survey </li></ul></ul><ul><li>All law students are trained and have unlimited use of CALR </li></ul><ul><li>Authorities permit lawyers to charge CALR </li></ul><ul><ul><li>CALR is reasonable, if not essential, in contemporary legal practice </li></ul></ul><ul><ul><ul><ul><li>Wehr v. Burrows , 619 F.2d 276 (3rd Cir. 1980) </li></ul></ul></ul></ul>
  31. 40. Use by Judges… <ul><li>ABA Judicial Division Guidelines and Recommendations Relating to Computer Support for Judges </li></ul><ul><ul><li>1989- &quot;[o]ne of the great conveniences of a computer in a judge's chambers is access to legal research.&quot; &quot;[l]awyers universally have easy access to data base research such as Lexis and Westlaw.&quot; </li></ul></ul><ul><ul><li>1993 & 1999 - recommend that judges have access to CALR including access to the World Wide Web </li></ul></ul><ul><li>reasonable to believe that they will expect same CALR use out of the attorneys that practice in their courtrooms </li></ul>
  32. 41. THE INEXORABLE SHIFT TO DIGITAL LAW: FASTER, BETTER, CHEAPER <ul><li>Distribution of legal information in digital form will continue its rapid substitution for the book/library system. </li></ul><ul><ul><li>faster and much cheaper </li></ul></ul><ul><ul><li>More capable in important ways </li></ul></ul><ul><ul><li>modular and recombinant - can be assembled in new ways as well as in distant places </li></ul></ul><ul><ul><li>control of law data by commercial interests through copyright and contractual arrangements that create exclusive distribution channels will no longer tolerated </li></ul></ul><ul><ul><ul><ul><li>See 26 Ky. L. Rev. 181 (1999) </li></ul></ul></ul></ul>
  33. 42. Factors why a knowledgeable, skillful, prompt, thorough diligent lawyer uses CALR <ul><li>Best and only source? </li></ul><ul><ul><li>Some primary sources are Web only </li></ul></ul><ul><ul><li>GPO closed bookstores and is eliminating most print title </li></ul></ul><ul><ul><li>PDF is the Federal archival format of choice with standard for long term accessibility PDF/A </li></ul></ul><ul><li>Most up to date source </li></ul><ul><ul><li>Always need to “fill the gap” to bring research most current </li></ul></ul><ul><li>24/7 access </li></ul>
  34. 43. <ul><li>Comprehensive research can be done quickly and cheaply </li></ul><ul><ul><li>Free sources </li></ul></ul><ul><ul><li>Low fee sources </li></ul></ul><ul><ul><li>Flat fee…small practice…topical slice options </li></ul></ul><ul><ul><li>Save time over print research </li></ul></ul><ul><ul><ul><li>Print = general to specific </li></ul></ul></ul><ul><ul><ul><li>CALR = go directly to specific </li></ul></ul></ul><ul><ul><li>Cut and paste world </li></ul></ul><ul><ul><li>Location and space less important </li></ul></ul>
  35. 44. Other considerations <ul><li>Educated consumers </li></ul><ul><ul><li>Clients can name and frame issues with rough accuracy and access the relevant primary law and expert commentary without the assistance of an attorney </li></ul></ul><ul><li>Greater Predictive Value </li></ul><ul><ul><li>Cheaper and easier access to more and more information may raise the standard of care for counseling clients </li></ul></ul><ul><ul><li>perceived advantages that follow from the knowledge of a decider's propensities available to repeat players and, less reliably through hearsay…reviewed on the basis of a pattern of performance </li></ul></ul><ul><ul><ul><ul><li>See 26 Ky. L. Rev. 181 </li></ul></ul></ul></ul>
  36. 45. 88 cases added since 9/04 the most recent dated the end of April
  37. 46. A LAWYER'S JUDGMENT WILL NEVER BE AUTOMATED <ul><li>Competence as an ethical matter is based on the lawyer's legal ability, not technical ability, and implies keeping abreast of new developments in law. Employing electronic research may be efficient, but if a lawyer is able to find the law and apply it correctly, the lawyer is acting competently regardless of how the information was obtained. </li></ul><ul><ul><ul><ul><li>20 NO. 4 GPSolo 21 (2003) </li></ul></ul></ul></ul>
  38. 47. <ul><li>Attorney conduct under the ethics rules is not measured by the same standards as civil actions based on claims of attorney malpractice or professional negligence. Certain practice areas may require the use of [electronic tools] in order to practice consistent with the accepted standard of care in that field. </li></ul><ul><li>Failure to use [CALR] has not become a generally accepted standard of care in malpractice cases. Issues of time sensitivity, cost, and other factors are considered in deciding whether the lawyer acted reasonably under the circumstances </li></ul><ul><li>Generally, lawyers are liable for legal malpractice for failure to perform adequate research rather than failing to use technology to do so </li></ul><ul><li>If Lewis had been able to conduct online legal research and still issed the relevant statute, the availability of technology would not have changed the decision </li></ul><ul><ul><ul><ul><li>Id. </li></ul></ul></ul></ul>
  39. 48. Has the free Web become a standard research tool?
  40. 49. <ul><li>The newest electronic tool for legal research is the Internet. The Internet is a new comer compared to Westlaw and Lexis, which have been around since the late seventies. It is the Internet that poses perhaps the gravest risk to attorneys as they attempt to remain ethical and avoid malpractice actions. The Internet has grown like a wild fire and threatens to consume the legal profession as we enter the new Millennium. It is in the failure to use the Internet where the majority of attorneys will most likely run afoul of their ethical duty to remain competent in their research. The Internet is pushing the law along faster than anything has ever done before. Lawyers who are used to the law changing with glacial speed are quickly realizing that this is one area in which the law is being pro-active. It is not a stretch to believe that the rules of professional conduct will soon include the use of the Internet in its evaluation of a lawyer's competency . </li></ul><ul><li>Whiteman, The Impact Of The Internet And Other Electronic Sources On An Attorney's Duty Of Competence Under The Rules Of Professional Conduct, 11 Alb. L.J. Sci. & Tech. 89 (2000) </li></ul>
  41. 50. Judges are already recognizing the importance of the Internet for legal research <ul><li>Justice Gregory K. Scott of the Colorado Supreme Court, while talking about competently representing a client, stated that &quot;[w]e all must now surf the Net. . . . Those who refuse to access it or use it--you must wonder whether they are competent to represent you&quot; </li></ul><ul><li>Justice James M. Dolliver of the Washington Supreme Court stated that &quot;[n]ot only have computers changed the way we write, but they have also changed the way we do research. . . . Today, the world has opened up, and we are now able to research cases from other jurisdictions easily by computer. Id. at 96 </li></ul>
  42. 51. <ul><li>Judge Payne, in an ineffective assistance of counsel claim, was clearly concerned that lawyers keep on top of the latest developments in legal research so that they could aid their clients in an effective manner. </li></ul><ul><li>&quot;In the modern environment of law practice, the law changes rapidly and develops in significant ways as a matter of course. One consequence of this modern environment, and of dramatic advancements in technology, is the advent of extensive resources for staying abreast of developments in the law.&quot; The court went on to note that &quot;[a]s technology and resources develop, the minimum knowledge and preparation required of lawyers develops as well. </li></ul><ul><ul><ul><ul><li>Citing McNamera v. U.S., Id. </li></ul></ul></ul></ul>
  43. 52. <ul><li>The court opined that people need to know how to find current information on the Internet. &quot;In today's society, with the advent of the 'information superhighway', federal and state legislation and regulations, as well as information regarding industry trends, are easily accessed.&quot; The court went on to admonish the plaintiff's attorney for failing to uncover information that was easily accessible in the public domain. This idea, that the Internet is becoming a place where information is considered to be in the public domain, is being recognized by some courts. Attorneys, and others, conducting business will be deemed to know of information found on the Internet as it affects their dealings. Thus, an attorney who represents a client must make sure to check the Internet when advising a client or preparing for a case. </li></ul><ul><ul><ul><ul><li>Citing Whirlpool Financial Corp. v. GN Holdings, Inc., Id. </li></ul></ul></ul></ul>
  44. 53. Duty to know when to not use the free Web? <ul><li>New York State Bar Association ethics opinion cautions attorneys that when relying upon legal research obtained through the Internet the lawyer must insure the reliability of such information </li></ul><ul><ul><ul><ul><li>N.Y. St. B.A. Comm. on Professional Ethics, Op. 709 (Sept. 16, 1998) </li></ul></ul></ul></ul><ul><li>Web = Wild West </li></ul><ul><ul><li>Uncontrolled environment </li></ul></ul><ul><ul><li>Sources? </li></ul></ul><ul><ul><li>Accuracy? </li></ul></ul><ul><ul><li>Currency? </li></ul></ul><ul><ul><li>Coverage? </li></ul></ul>
  45. 54. NHRPC 3.3 Duty of Candor A lawyer shall not knowingly…fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel Courts have read this as what the lawyer should know!
  46. 55. Massey v. Prince George’s County 918 F.Supp. 905 (D. Md. 1996) <ul><li>After county was granted summary judgment and controlling and directly adverse case came to court's attention, county was ordered to show cause under Rule 3.3 why case had not been cited </li></ul><ul><li>District Court held that prior decision that made new law in circuit and was factually indistinguishable should have been disclosed </li></ul><ul><li>Despite that Office had pressed case that made new law, Rule 11 sanctions not warranted </li></ul>
  47. 56. Massey turns to Rules 1.1 & 1.3 <ul><li>The Court turns to Respondents' further answer to its Show Cause Order, namely that the Assistant County Attorney who filed the Motion for Summary Judgment in this case did not know about the Kopf case. That, of course, may well be true, but the question is, ought he to have known? As with Plaintiff's counsel in these proceedings, defense counsel had an obligation under Rule of Professional Conduct 1.1 to provide &quot;competent representation,&quot; which includes an ability to research the law. Similarly, Rule 1.3 requires that &quot;a lawyer shall act with reasonable diligence and promptness in representing a client,&quot; which includes pursuing applicable legal authority in timely fashion. Case reports are available in hard cover and on-line from computers. </li></ul><ul><ul><ul><ul><li>918 F.Supp 905,908 </li></ul></ul></ul></ul>
  48. 57. Court shows how to find the case using Westlaw <ul><li>The Natural Language search method on Westlaw allows one to enter a string of concepts that describes one's research issue. Westlaw then retrieves the documents that have the highest likelihood of matching the concepts in the description.Westlaw ranks the documents in descending order as to how often the search terms occur in close proximity to one another. As of March 1, 1996, a search in the Fourth Circuit database with the concepts EXCESSIVE FORCE POLICE DOG BITE reveals that the two most frequently referenced cases are (1) Kopf v. Skyrm, 993 F.2d 374 (4th Cir.1993), which is the appeal after remand of Kopf v. Wing, 942 F.2d 265 (4th Cir.1991), and (2) Kopf v. Wing itself. </li></ul><ul><ul><ul><ul><li>918 F.Supp. 905,908 </li></ul></ul></ul></ul>
  49. 58. Updating authorities Scolding and sanctions
  50. 59. One of the most important steps in the research process… <ul><li>Obtaining the history of a case and how it has been treated is crucial to determining whether it is of any value to you as authority. Knowing the precedential value of a case, particularly any negative treatment or if it has been overruled, is critical to the direction your research takes you. </li></ul><ul><ul><ul><ul><li>See 92 Ill. B.J. 155 (2004) </li></ul></ul></ul></ul>
  51. 60. <ul><li>Gosnell v. Rentokil, 175 F.R.D. 508,510 (N.D.Ill. 1997) </li></ul><ul><ul><li>It is really inexcusable for any lawyer to fail, as a matter of routine, to Shepardize all cited cases (a process that has been made much simpler today than it was in the past, given the facility for doing so under Westlaw or LEXIS). Shepardization would of course have revealed that the 'precedent' no longer qualified as such. </li></ul></ul>
  52. 61. <ul><li>DeMyrick v. Guest Quarters Suite, 1997 U.S. Dist. LEXIS 4377 3066 (N.D. Ill. 1997) </li></ul><ul><ul><li>DeMyrick's motion is particularly distressing under the circumstances. It is not simply that DeMyrick's counsel are highly experienced in Illinois personal injury practice and might therefore be expected to keep themselves current on such issues that are of importance to the conduct of such practice and that arise with some frequency. Beyond that expectancy, no counsel ought to cite a case without Shepardizing that case (or without conducting the equivalent electronic search via Westlaw or Lexis). And any such search would immediately have revealed… </li></ul></ul>
  53. 62. <ul><li>Horaitis v. Mazur, 2004 LEXIS U.S. Dist. LEXIS 3066 (N.D. Ill. 2004) </li></ul><ul><ul><li>[E]xperienced counsel such as Mazur's should know better than to cite Geise- and if they did not know better to begin with, they should have learned better by the simple act of Shepardizing Geise (as every lawyer should do before citing any case). That 1994 decision was expressly distinguished just three years later by Maksimovic, which upheld such common law tort claims as assault and battery as outside the scope of the exclusive remedy provision of the Illinois Human Rights Act . </li></ul></ul>
  54. 63. <ul><li>Blake v. National Casualty, 607 F.Supp. 189 (C.D. Cal. 1984) </li></ul><ul><ul><li>[I]f plaintiff's attorney had Shepardized the three cases Tyson [the case he relied on] cites in support of the narrow definition, he would have found Beckham [a controlling case contrary to his position]. Beckham could also be found easily by using an annotated United States Code, a digest, or a computer search. All of these, with the possible exception of the computer search, are basic methods of researching a point of law. To have done none of them is not reasonable inquiry. </li></ul></ul>
  55. 64. Golden Eagle Distrib. Corp. v. Burroughs Corp., 103 F.R.D. 124 (N.D. Cal. 1984) (later rev.d) <ul><li>Moreover, the failure to cite, if not Huang, at least Pisano, decided almost a year earlier, is a violation of counsel's &quot;duty to disclose directly adverse authority </li></ul><ul><li>Counsel claim to have been &quot;unaware of [those cases] until the oral argument on the Motion.&quot; For counsel to have been unaware of those cases means that they did not Shepardize their principal authority, Seely ; as early as February 1984, Shepard lists Pisano under Seely as &quot;distinguished.” </li></ul><ul><li>In some circumstances a failure to discover adverse authority after a reasonable search has been made may be excusable. Counsel's declaration does not specify what search was made here, but their Rule 11 memorandum bespeaks their capacity to find supporting authority, such as the Lexis copy of an unreported district court decision and a decision of the California Court of Appeal issued on July 13, 1984. Thus their failure to cite adverse authority is not excusable. </li></ul>
  56. 65. <ul><li>United States v. Jolly, 102 F.3d 46, 50 n.2 (2d Cir. 1996) (commenting that &quot;(s)imply shepardizing&quot; cited authority would have disclosed later case distinguishing authority) </li></ul><ul><li>United States v. Barnes, 912 F. Supp. 1187, 1189 n.1 (N.D. Iowa1996) (finding &quot;most unsatisfactory&quot; a &quot;canned brief&quot; that did not cite controlling decisions where Shepardizing would have corrected error) </li></ul><ul><li>Jansen v. Packaging Corp. of America, 898 F. Supp. 625, 630 n.4 (N.D. Ill. 1995) (condemning citing case for &quot;opposite proposition&quot; from its holding and misstating other law for lack of Shepardizing) </li></ul><ul><li>Stephens v. Kemp, 602 F. Supp. 960, 965 (M.D. Ga. 1984) (finding inexcusable neglect in failing to find relevent cases through use of West's KeyNumber System, Westlaw, Lexis, or Shepardizing) </li></ul><ul><li>Hill & Range Songs v. Fred Rose Music, 413 F. Supp. 967, 970 (M.D. Tenn. 1976), aff'd, 570 F.3d 554 (6th Cir. 1977) (criticizing all counsel involved for failing to find controlling case by Shepardizing) </li></ul><ul><li>Liu v.Interinsurance Exch., 252 Cal. Rptr. 767, 779 (Ct. App. 1988) (noting Shepardizing would have disclosed controlling authority) </li></ul><ul><li>Cimino v. Yale Univ., 638 F. Supp. 952, 959 n.7 (D. Conn. 1986) (emphasizing that &quot;diligent research&quot; is professional responsibility, and reprimanding counsel for failing to find leading case through Shepardizing). </li></ul>
  57. 66. Subtleties of Using Citators <ul><li>Statute legislatively overruled the case relied on </li></ul><ul><li>Expired statutes </li></ul><ul><li>Overstated treatment signals </li></ul><ul><li>Not explicitly overruled by higher court </li></ul>
  58. 67. Have Online Citators Made Print Obsolete? <ul><li>A couple of years ago I heard a law professor comment that teaching citation analysis using print citators was akin to having a molar pulled with a rusty pair of pliers and no anesthesia. With all the symbols, abbreviations, and supplements supplemented with supplements </li></ul><ul><ul><ul><ul><li>See 92 Ill. B.J. 155 (2004) </li></ul></ul></ul></ul>
  59. 68. Using print citator such as Shepard's is a time-consuming task <ul><li>Requires one to carefully navigate each step in the process </li></ul><ul><ul><li>select the correct citator </li></ul></ul><ul><ul><li>verify currency and completeness </li></ul></ul><ul><ul><li>know and understand how to use it </li></ul></ul><ul><ul><li>find the citation </li></ul></ul><ul><ul><li>interpret the information </li></ul></ul><ul><ul><li>Update using supplements & toll free phone call or Internet </li></ul></ul>
  60. 69. CALR citator considerations <ul><li>save time? </li></ul><ul><ul><li>Shepards & Keycite </li></ul></ul><ul><ul><li>Other citator services </li></ul></ul><ul><ul><li>Searching case name </li></ul></ul><ul><ul><li>keep research costs under control </li></ul></ul><ul><ul><ul><li>Spectrum of pricing options </li></ul></ul></ul><ul><li>have the latest information </li></ul><ul><li>Value added links </li></ul><ul><li>Value added editorial enhancements </li></ul>
  61. 70. Sanctions Rule 11 State equivalents
  62. 71. FRCP 11. Signing of Pleadings, Motions, and Other Papers; Representations to Court; Sanctions <ul><li>(b) Representations to Court. By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,… </li></ul><ul><li>(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; </li></ul>
  63. 72. NHRPC 3.1. Meritorious Claims and Contentions <ul><li>  </li></ul><ul><li>A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established. </li></ul>
  64. 73. <ul><li>RULES OF PRACTICE AND PROCEDURE IN THE PROBATE COURTS OF THE STATE OF NEW HAMPSHIRE  </li></ul><ul><li>Rule 59. PLEADINGS - Frivolous Conduct. </li></ul><ul><li>     The Court may assess reasonable costs, including reasonable counsel fees, against any Party or Attorney whose frivolous or unreasonable conduct makes necessary the filing of any Pleading or hearing thereon. </li></ul>
  65. 74. <ul><li>CHAPTER II. GUARDIAN AD LITEM GUIDELINES AND STANDARDS OF PRACTICE </li></ul><ul><li>Rule 2.6.1. Meritorious Claims and Contentions </li></ul><ul><li>  The GAL shall not bring or defend a proceeding or assert or controvert an issue therein unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law. </li></ul>
  66. 75. <ul><li>RULES OF THE DISTRICT COURTS OF THE STATE OF NEW HAMPSHIRE </li></ul><ul><li>GENERAL RULES </li></ul><ul><li>Rule 1.8. Motions. </li></ul><ul><li>  A. Any request for action by the Court shall be by motion. ...They shall state with particularity the grounds upon which they are made and shall set forth the relief or order sought. </li></ul><ul><li>   … </li></ul><ul><li>F. The Court may assess reasonable costs, including reasonable counsel fees, against any party whose frivolous or unreasonable conduct makes necessary the filing of or hearing on any motion. </li></ul><ul><li>SAME IN THE SUPERIOR COURTS- RULE 59. The Court may assess reasonable costs, including reasonable counsel fees, against any party whose frivolous or unreasonable conduct makes necessary the filing of or hearing on any motion. </li></ul>
  67. 76. Balance duties to advocacy & court… <ul><li>[T]he increasing use of judicial sanctions against lawyers and their clients is perhaps the most significant recent development in federal and state civil procedure. </li></ul><ul><ul><ul><ul><ul><li>Jandrt v. Jerome Foods, Inc., 601 N.W.2d 650, 651-52 (Wis. 1999) (Abrahamson,C.J., dissenting) (citing Byron C. Keeling, Toward A Balanced Approach to &quot;Frivolous&quot;Litigation: A Review of Federal Rule 11 and State Sanctions Provisions, 21 Pepp. L. Rev.1067, 1071 (1994)). </li></ul></ul></ul></ul></ul>
  68. 77. <ul><li>Now, across the nation, state statutes and high court rules insist that lawyers conduct legal research that is in accord with the professional standards of zealously representing their clients, before the lawsuit is filed. These statutes and rules exact a heavy price from the offending lawyer, the lawyer's firm, or the client for failure to comply. The zealous representation of a client is disparaged when the lawyer cannot find the law,does not know how to select the applicable law or distinguish the law, and cannot make a good faith argument for an exception, extension or reversal of the law. All legal decisions must begin and end with competent legal research . </li></ul>Butler, Rule 11- Sanctions And A Lawyer's Failure To Conduct Competent Legal Research, 29 Cap. U. L. Rev. 681 (2001)
  69. 78. <ul><li>Between 1938 and 1983, when the first Rule 11 amendments became effective, only 19 Rule 11 cases had been litigated </li></ul><ul><li>Harsh penalties were not assessed. Rule 11 permitted a &quot;pure heart, empty head&quot; subjective defense for failing to conduct competent legal research </li></ul><ul><li>1983 amendments changed the standard for assessing penalties from a subjective good faith standard, to an objective, reasonable attorney standard </li></ul><ul><li>This objective standard requires a lawyer to conduct research as a reasonable lawyer would under similar circumstances </li></ul><ul><li>In 1983, when Congress amended Rule 11, many States, either by court rule or state statute, enacted Rule 11 equivalents that mirrored the harsh 1983 Rule 11 amendments </li></ul>
  70. 79. <ul><li>No duty to do perfect or exhaustive research or to reach the correct legal position from the research </li></ul><ul><li>Reasonable research is all that is required </li></ul><ul><li>Court's first inquiry- is the complaint plausible on its face </li></ul><ul><li>Novel arguments not chilled </li></ul><ul><li>Lawyers required to &quot;Stop, Think, Investigate and Research&quot; filing papers to initiate a lawsuit or conduct the litigation </li></ul>
  71. 80. Synthesis of cases: improper research when: <ul><li>ignores an unbroken line of contrary authority </li></ul><ul><li>fails to offer even remote analogies </li></ul><ul><li>does not cite any cases or only cites a single, wholly inapposite authority in support of his &quot;argument” </li></ul><ul><li>fails to argue for the modification, extension or reversal of existing law </li></ul><ul><ul><ul><ul><li>See 29 Cap. L. Rev. 681 (2002) </li></ul></ul></ul></ul>
  72. 81. Types of Sanctions <ul><li>Deterrence from abuse is primary purpose </li></ul><ul><li>Sanctions go to attorney - not the client </li></ul><ul><ul><li>Few hundred dollars to $15,000 </li></ul></ul><ul><li>Fee shifting to compensate OP who must defend </li></ul><ul><li>Publication </li></ul><ul><li>order barring attorney from appearing for a period of time </li></ul><ul><li>Reprimand </li></ul><ul><li>dismissal of baseless claims or defenses </li></ul><ul><li>ordering to circulate a copy of the opinion in which the pleadings were criticized in the firm </li></ul><ul><li>order to consult with judge in chambers to identify remedial training &quot;to correct deficient legal research skills” </li></ul>
  73. 82. State cases…. <ul><li>Arizona </li></ul><ul><li>California </li></ul><ul><li>Florida </li></ul><ul><li>Idaho </li></ul><ul><li>Louisiana </li></ul><ul><li>Michigan </li></ul><ul><li>Mississippi </li></ul><ul><li>Nebraska </li></ul><ul><li>Nevada </li></ul><ul><li>New Jersey </li></ul><ul><li>New York </li></ul><ul><li>North Dakota </li></ul><ul><li>Ohio </li></ul><ul><li>Utah </li></ul><ul><li>Washington </li></ul><ul><li>Wisconsin </li></ul>Legal Research and Law Library Management , Rev. Ed. 2005
  74. 83. In closing….”Resistance is Futile”