Dear e-Carswell (Westlaw): my case was upheld on appeal, not overturned, you idjits!!!!

The BBQ Pit
1

The backstory: many moons ago, a wet-behind-the-ears lawyer, not yet Northern Piper cause Al Gore hadn’t got around to inventing the interwebs, argued a case in the Queen’s Bench involving a tricky point of law. The position I took was a counter-intuitive one, and I was told by more senior lawyers that the Court would dismiss my arguments, because the weight of authority was against me.

Ha! The QB judge agreed with me and ruled in favour of my client. Victory!

The other side appealed to the Court of Appeal, but unsuccessfully - in fact, the Court of Appeal didn’t even call on me to argue, and just gave a short oral decision, upholding the QB decision. Yay me!

Fast forward to the modern, internet-based age, where paper casebooks are a thing of the past, and every case is available on-line, complete with neat little indicators of how it’s been dealt with by other courts. And, by a coincidence, I have another case that raises a similar point of law, so I thought, “I’ll re-read my old case, because I think it may be of assistance here.”

So I bring up the old case, and to my horror, I see that it’s got a red flag beside it. That’s a bad sign - it means some other court was trashing it. Then I noticed that it’s only been cited in one other case: the Court of Appeal decision where I wasn’t even called on. So I open up the red flag icon, and it says that the Court of Appeal had overturned the QB decision!

To make it even worse, they say that the Court of Appeal decision is not available on-line, so anyone noting up this case would just rely on the little red flag!!

And of course, no-one is going to cite a case that e-Carswell says was overturned on appeal!!!

Imagine how Rumpole would feel if a legal historian recorded that there had been a conviction in the Penge Bungalow murder case. That’s how I’m feeling.

There will be stiff e-mails sent to the e-Carswell idjits…

2

Maybe it was all an elaborate ruse, meant to instill confidence in you as a young lawyer.

3

I am so glad you warned us about this… it changes everything, and puts the entire future of our project at risk.

I must go now for my plans are undone. The Guardians must be told and the escape pods made ready.

Damn you, e-Carswell. Damn you to hell.

4

Heh. That’s pretty distressing, actually. In American courts, much of the legal research that goes into judicial decision-making is performed by law clerks - newly minted lawyers, straight out of law school. (In fact, it’s common for them to write the decisions as well, at least in draft form.) New lawyers are heavily dependent on electronic databases - I don’t think I ever cracked a reporter after my first year of law school.

All of which is to say that it’s entirely possible judges in your jurisdiction are making decisions, on the advice of their clerks, based on precisely the wrong interpretation of the law. Diligent clerks should, of course, be tracking down the actual text of the Court of Appeals decision - but still.

5

Westlaw, Lexis-Nexis, and all of the other similar internet-based proprietary databases rely on human data enterers, who, being human, make mistakes. And who, being paid at or near minimum wage and who have a turnover rate like that of your average amusement park worker, don’t have particularly great incentive or track records to get things 100%.

Take a chill pill, contact Westlaw, and you’ll get it fixed. Problem solved.

6

Well, technically, problem isn’t solved until he does get it fixed…

7

If I were you I’d get a lawyer.

What?

8

I can assure you that among the first things a clerk learns is to ignore Westlaw flags.

9

Darn you to heck for injecting some calm reasonableness into my little rant! :slight_smile:

I spent some time on the phone yesterday with a chap from e-Carswell, and the upshot is that I’ve ordered my file back from our long-term storage facility - if I send him the formal judgment roll, he’ll see about getting it fixed. He sounded a bit surprised by it all, and puzzled by the fact that there were no reasons issued by the court.

Is this sort of error common, then? it’s the first I’ve seen of it.

10

Common enough to make the flags unreliable, in my view. Though usually, but not always, in the other direction (i.e. failure to flag overruling or significant negative history). And I’m only talking about demonstrably mis-flagged written opinions.

11

It’s why I maintain a library of law reports in hardcover bound paper pages. They are just more accurate than anything else - you can’t trust the on line summaries either.

12

Just think of the brilliant move someone will pull when they cite your case, some snotty attorney shoots it down as being overturned by the court of appeals, and then the first attorney says “Well, if you had done your actual research instead of taking shortcuts, you would have found that the case was NOT overturned and the citation stands.”

Ooh, legal BURN.

Enjoy,
Steven

13

Plus, they look awesome when the camera pans over them. :slight_smile:

14

Alright, so maybe whoever originally entered the data was an idjit (I’m not backing down on that one), but at least the fellow I spoke with wasn’t. He’s taken down the red flag, and my little QB victory stands inviolate in cyber-space for all to see (at least, all those who have an e-carswell subscription). I also sent him the judgment roll which he’s put on their file for future reference.

15

I did feel balance return to the force in Canada today. :slight_smile:

16

I’ve seen differences between official printed reports and un-official printed reports that take out the word “not”, changing the entire meaning of the holding. At the time the West version was the un-official reporter. That doesn’t mean that theirs was the one that was different from the judges typed decision, but at least one of them was. The official version is the one that is going to be relied on, however.

17

The flags and the Shepard’s ™ back when we used paper always had to be followed up by looking at the other material: overturning opinion or order. Sometimes even those are not right.