Judges debate use of outside internet research

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

That's the consensus of a panel of 50 judges and court-related personnel who participated last month in the American Bar Association's electronic, interactive question-and-answer program on the subject matter.

Sponsored by the ABA Judicial Division, "Judicial Decision Making and Contemporaneous Research: Ethics or Access?," the forum explored numerous issues raised through a series of questions on whether use of the internet and other research is appropriate for such judges.

Colleen O'Toole, a retired Ohio state appeals court judge who moderated the program, asserts the presupposition is that everybody is using the internet anyway.

"That's what the data shows," O'Toole asserts. "Everybody is outside the record now, even if you think they should be inside the record."

The session provided a rare glimpse into the thinking of a range of judges and at times, the issues confronted sparked disagreements.

When asked whether judges should disclose outside research to the parties in the case, 64%, or nearly two-thirds, of the responses say they should do so.

Panelist Eric J. Magnuson, a former Minnesota Supreme Court justice now in private practice, contends, "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 recently appeared to contradict his own attorneys 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. Panelist Marla Greenstein, executive director of the Alaska Commission on Judicial Conduct, asserts that they should.

"Following presidential tweets is like having a subscription to The Washington Post," she says.

Another dilemma for judges, experts say, is overseeing complex litigation, such as a patent case, in which a judge might have limited, if any, expertise in the subject matter being litigated.

Does the judge use the internet or an outside reference material, such as, for instance, a book on patent law for dummies?

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

State judges are governed by state rules, typically modeled after the ABA Model Code of Judicial Conduct.

The association also provides formal opinions, and panelists particularly praised the organization's Formal Opinion 478, which provides official guidance for judges on use of the internet.

Issued in 2017 by the American Bar Association 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, says judges themselves are driving the change in regulating the judiciary.

Burton urges the judges in the room to exercise a "strong role" in keeping the judiciary in step with broader changes in the industry and in technology.