Bench & Bar

JUL 2018

The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.

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21 BENCH & BAR | e current study found that the courts cited to the Internet a total of 184 times in 113 cases. e URLs for 65.2 percent (or 120) were still active and brought the researcher to the cited websites, leaving 34.8 percent (or 64) of the URLs as dead links. ese results show a slight increase in the accessibility of Internet links (65.2 percent vs 52.8 percent), but this still leaves a relatively high percentage (34.8 percent) of Internet citations that are inaccessible. ese statistics indicate that citations to the Internet will continue to increase in appellate opinions. e courts cited to Internet pages an average of 11 times per year in the previous study, and 26 times per year in the current study. Given the higher ratio of citations, and the continued "link rot" amongst the citations, the authors suggest the appellate courts address this issue in a variety of ways. ese suggestions will be discussed further in the second part of this article. In the previous article, the authors posited that the increased citation to Internet sources, combined with a relatively high per- centage of dead links, can lead to a loss in the understanding of the underlying rationale for why a court decided a case in a particular manner. "e ability to look at the authority relied upon by a court in coming to its decision underlies the system of Stare Decisis which forms the basis of the Common Law. Increased use of Internet citations in judicial opinions, especially ones that fall victim to link rot, may undermine this system and make it much more difficult for future lawyers and judges from determining exactly how to use a judicial opinion." 5 By way of example, in Sluss v. Commonwealth, 381 S.W.3d 215 (Ky. 2012), the court looked at two matters of first impression: e first being: Whether being a person's Facebook "friend" standing alone can disqualify a juror is a question this Court has not been called upon to answer, nor has the Court previously considered the impact of an online "friend- ship" between a juror and someone closely involved in a criminal case. More broadly, it is the first time that the Court has been asked to address counsel's investigation of jurors by use of social media. Id. at 226. e second being: ere is an unsettled question about the extent to which counsel for a criminal defendant may investigate jurors during or after trial. e question generally involves whether the attorney engaged in inappropriate "com- munications" with a juror, such as adding the juror as a "friend" on Facebook directly through his own account or through a form of deception, or whether the infor- mation was truly public. Id. at 226-227. In discussing these issues the court relied on a Formal Opinion of the N.Y. County Lawyers Association Commission on Profes- sional Ethics. e Court cited to an ethics opinion via a URL on the Commission's web site. Unfortunately the link to the opinion no longer works. However, given the easy nature of locating this opinion, perhaps this particular broken link is not terribly inconve- nient. 6 While this may be true today, the same may not be true in the future, so a broken link may be our only source for the opinion, an opinion which was relied upon by the Court in deciding this matter of first impression. More troubling is the citation to a news story which the Court relied upon as "evidence that, while the practice of conducting intensive internet vetting of potential jurors is becoming more commonplace, 'lawyers are skittish about discussing the practice, in part because court rules on the subject are murky or nonexistent in most jurisdictions.'" Id. at 227. Since this case deals with "first impression" issues, the evidence, upon which the decision rests, should not be such that it is hard, or impossible, to uncover by future researchers. While the authors were able to eventually find the original news story, there is no guarantee that a future researcher will find it, or a more likely scenario may be that the original story will eventually make its way behind a firewall, so only those with paid access can find the original news article. Link rot in judicial opinions continues, and the threat that this poses to our Common Law system cries out for some form of a solution. In 2012, the authors cautioned the Bar with the following passage: "When . . . a court purportedly bases its understanding of the law or the law's application to case facts upon a source that cannot subsequently be located or con- firmed, the significance of the citation to that source becomes more ominous. If present readers of the opin- ion cannot determine how much persuasive weight was or should be accorded to the unavailable source, they have little reason to place much confidence in the opin- ion's authoritativeness." 7 Either a judge's opinion citing a dead-end source loses some of its authoritativeness or the system becomes one in which we no longer try to tease out a judge's reasons for a decision. 8 Given the continued problems with link rot, and the likelihood that litigants and courts will continue to use the Internet as a source of inf ormation, the authors wish to propose some possible solutions to this problem. It is the authors' hope that these proposals will be seen as friendly suggestions to the appellate courts as a way to address an issue that the evidence suggests is not going away. A number of jurisdictions, both federal and state, have wrestled with how to deal with link rot. Some jurisdictions have adopted internal operating procedures to preserve the web site materials, while others are turning to outside resources to help with this problem. Any of the solutions described below would be a positive step forward for the Courts of the Commonwealth. One low tech-solution would be for the Kentucky Supreme Court to adopt procedural rules that requires the Clerk's office to print

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