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August 11, 2019

Judges answer questions, and their responses might surprise you

Even though judges routinely in civil and criminal matters admonish jurors not to read or discuss anything about the case before them, if necessary, do judges use outside internet research to educate themselves on issues raised by the case? Most do.

And who uses outside research more: judges or jurors? The judges.

Overwhelmingly, these were the responses by around 50 judges and court-related personnel at an interactive, electronic question-and-answer program at the American Bar Association Annual Meeting Saturday, Aug. 10, in San Francisco. Sponsored by the ABA Judicial Division, “Judicial Decision Making and Contemporaneous Research: Ethics or Access?” explored numerous issues raised through a series of questions on whether use of the internet and other research was appropriate.

Colleen O’Toole, a retired Ohio state appeals court judge who moderated the program, provided this frank assessment. “The presupposition is that everybody is using (the internet) anyway,” she said, adding: “That is what the data shows. Everybody is outside the record now, even if you think they should be inside the record.”

The interactive electronic session provided a rare glimpse into the thinking of a range of judges, and at times sparked disagreements. When asked whether judges should disclose outside research to the parties in the case, 64 percent of the responses said they should.

Panelist Eric J. Magnuson, a former Minnesota Supreme Court justice now in private practice, observed that “information is coming in the [court] record through the back door…and the point of the program is to give more rules, for judges in particular, to how you control the use of this medium by yourself, your staff and what you do with lawyers in front of you.”

Except in a few cases, there were no bright-line answers to some of the questions. Some were hypothetical; others drawn from the news. The panelists discussed, for example, the federal census case when President Donald Trump appeared to contradict his own lawyers through a tweet about proceeding in the case. There was a strong consensus (94% of the responses) that the federal judge could not ignore the tweets and reacted appropriately by convening a conference call among lawyers in the case.

The question also arose whether judges should follow presidential tweets. Judges should, responded panelist Marla Greenstein, executive director of the Alaska Commission on Judicial Conduct. “Following presidential tweets is like having a subscription to The Washington Post,” she said.

Another dilemma for judges: overseeing complex litigation, like a patent case, where a judge might have limited, if any, expertise in the subject. Does he or she use the internet or an outside reference material, such as a book on patent law for dummies.

In that case, the best route for judges is to appoint their own expert and let the individual become the source of subject-matter assistance, said Judge Stephanie Domitrovic of the Sixth Judicial District of Pennsylvania.

State judges are governed by state rules, typically modeled after the ABA Model Code of Judicial Conduct. The ABA also provides formal opinions, and panelists particularly praised ABA Formal Opinion 478, which provides guidance for judges on use of the internet. Issued in 2017 by the ABA Standing Committee on Ethics and Professional Responsibility, the formal opinion reads, in part: “Stated simply, a judge should not gather adjudicative facts from any source on the Internet unless the information is subject to proper judicial notice.”

Another panelist, Chad Burton, a legal entrepreneur from Ohio, said that judges themselves are driving the change in regulating the judiciary, and he urged the judges in the room to exercise a “strong role” in keeping the judiciary in step with broader change.