Indiana Judges Association: The online life of judges requires prudence

To: Self
From: Self
Re: My online life
Date: 2015

According to Wikipedia, Judge Richard Posner has written more than 40 books. According to his detractors, that information is not admissible in a court of law. Who is right, or the better question, who should be right? Thoughts:

I spend most of my time at work and at home looking at a computer screen. I can no longer recall what I do or think, on either one, or when.

Does a “website” contain unilateral ex parte information or is it a collection of documented facts, or both, or what? I cannot figure it out and can no longer tell the difference.

I use Google more than any other way to find a case. Is that safe? Must find out.

If I mail a letter to a friend, can I use my office stationery? (Cannot remember last time wrote a letter.) If I email a friend, can I use my office email? (I think it looks the same in their inbox.)

Am I violating some judicial canon by using my office computer to write this?

Poor Posner is probably worse off than I am. He must have law clerks who don’t know the difference between a law review article and a blog. Now that I think of it, is there a difference? Posner repeatedly cited the websites of the National Institute of Health, Mayo Clinic, even WebMD and Wikipedia in a recent Indiana civil rights case to reverse summary judgment for an unrepresented inmate. He claims his Internet research is as worthy as legal research and those who complain about the strict rules of evidence are “fetishizing” the adversary process.

“In a case of such dramatic inequality of resources and capabilities,” Posner wrote, the adversarial process should not be “an unalterable bar to justice.”

Hmmm. Just noticed that Posner wrote a book in 2013 which included remarks about Internet research in his opinions. He said the Internet is “an incredible compendium of data,” and is comparable and as reliable as the traditional fact-finding process at trial. Sure would save a lot of time.

Must do:

Find guidelines about how to use Internet research – like Paul Gil, a Canadian Internet basics expert, or at least what it says on the website

Find out how reliable is Internet research, maybe:

Who is author of page if possible?

Is there a copyright?

Is the information primary or secondary, that is, does it show an actual article that exists independent of the Internet, or is it just a collection of data without a clear source?

Decide whether all legal research isn’t just the same as Internet research. Can’t remember the last time I used a real law library.

What does it mean to be human in the 21st century? We are completely wired. Not a minute goes by without being bound by scientific rules and devices, whether it is the technology in our car, the phone in our pocket or the lights above our heads. How does that affect our thinking? Well, if the Internet says so, it must be so. And that is what scares Posner’s detractors and what thrills his supporters. The principle of expediency has exploded with power all over the digital age. We are drenched with it. On one hand, we can get more information easily and in great quantities. On the other hand, we sometimes lose the ability to discern and deliberate, like how do I tell the difference between office and personal business when I do both simultaneously?

Judges and lawyers must be committed to the quality of facts and principles. Oftentimes, quality and expediency are like Posner and his detractors. They both have good points but will not get along until they realize the value of each other. The world will not become less complicated and legal issues will not become easier just because we have the great “compendium” called Internet. We legal professionals have a unique role to translate ancient theorems into optic fiber. Along with that obligation arises a longstanding devotion to ensuring the world understands what law is and has always been: an imperfect process to determine “facts” and apply the rules.

So I am no longer so worried about the melting line between actual facts and virtual facts. It is quality that I seek in whatever form it comes. Reliability has always been the touchstone of admission of all evidence. I know that because I found it online.

Note to self: I believe that Posner wrote more than 40 books. But I would not let it into evidence.•

Judge David J. Dreyer has been a judge for the Marion Superior Court since 1997. He is a graduate of the University of Notre Dame and Notre Dame Law School. He is a former board member of the Indiana Judges Association. The opinions expressed are those of the author.

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