As we all know by now, legal technology is rapidly, rapidly advancing, and the manner in which lawyers conduct research and communicate continues to evolve at an exponential pace. However, one aspect of the legal profession which has not significantly changed in the past several hundred years is the judicial opinion – that document issued by the court which explains the logic and reasoning behind the court’s disposition of a particular case.
A law professor of mine once remarked that the purpose of the judicial opinion is to explain to the losing side why it did not prevail in the matter. Courts – from the highest in the land to those with the least amount of power and jurisdiction – issue the same types of opinions that have always been issued. Sure, private companies like West and Lexis capitalize upon the issuance of opinions and offer them in modified formats for practitioners (with hyperlinks to cited cases, head notes, star pagination, and other such bells and whistles.) However, the issuing courts themselves have not dramatically altered the nature of the judicial opinion in any way (save for, perhaps, making them available digitally on the Internet, although that’s a different issue).
Why is that?
Well, perhaps Courts are not as well positioned as private industry to make such changes in the manner in which they draft opinions. But what could Courts be doing differently?
Take, for example, the relatively recent U.S. Supreme Court case of Scott v. Harris, 550 U.S. 372 (2007). In that case, the U.S. Supreme Court found that a video of a police pursuit (seen in the YouTube clip above) “blatantly” contradicted the version of events recounted by the Plaintiff – the suspect of the pursuit – who claimed the deputy at issue engaged in excessive force and an unreasonable seizure when the deputy’s termination of the pursuit resulted in an accident which left the Plaintiff a quadriplegic. Thus, the Supreme Court reversed the lower court and found that summary judgment should have been entered for the defendants, primarily based upon the video evidence. That’s some twenty-first century jurisprudence, to be certain.
The Court found that the video – as an objective recording of the litigated events – trumped the Plaintiff’s testimony to the extent that summary judgment could be entered despite that interested witness testimony. Now, certainly, the parties to that litigation possessed and were aware of the contents of that video, but the many, many readers of that opinion – as strangers to that litigation – relied upon the Court’s recitation of its interpretation of that video. (The Court attempted to cure that issue in this case by posting the video on its own website.).
In this day and age of digital images and technology, when government reports are routinely issued with photographs, charts, and images, why is this not done more often by judges? Courts routinely discuss the admissibility or authenticity of photographs without actually publishing the photographs in the opinions themselves. Often, jurists discuss schematics, deeds, plats, and other such documents without actually including the relevant imagery in the opinion itself. Certainly, embedded content in a judicial opinion could offer many advantages.
Perhaps this is a product of tradition, and attorneys – as authors of briefs which are predominantly prose – are equally at fault. While it is customary to attach photographs as exhibits to memorandum in support of motions, rarely does the attorney actually embed the photograph into the image itself. (This is changing for the better, though.). Thus, the Court, or the reader of the brief, is required to flip from the particular page being read back to the exhibit index and then back to the argument again. It seems that in 2010 this is unnecessary in both written submissions to the Court as well as in the resulting opinions themselves.
Certainly, there are plenty of reasons not to include photographs in opinions. Privacy concerns and the fact that photographs may be inappropriate for general publication due to the subject matter depicted certainly come to mind. In some cases, the image at issue may be copyrighted, and since court opinions themselves cannot – or should not – be copyrighted, their inclusion in an opinion may prompt numerous questions best left unasked and avoided altogether.
But in the end, the law, and the process by which it is communicated, must evolve.
Dissenting in Hampton v. Norfolk & W.R. Co., then North Carolina Supreme Court Justice (and later Chief Justice) Walter Clark wrote:
The law avails itself of every advance in science which renders the investigation of truth more accurate, and recent authorities have admitted, as aids to a court in its search after truth the Roentgen or X-ray photographs; their admission being opposed on the familiar principle, so often appealed to in the courts of this country, that this kind of evidence was unknown to the learned lawyers of the Heptarchy, and therefore was no evidence at all. Doubtless, in the near future, projectoscopes may be used in the court room, where the object shall be to convey to the minds of the jury a true picture of living action, as the movements of a horse, of a train, an assault and battery, or a riot, and the like. Law, like medicine, must make use of every improvement that will secure greater certainty in attaining its object.
27 S.E. 96, 98-99 (N.C. 1897) (emphasis added; quotations omitted).
Although that opinion addressed the admissibility of photographs, its logic holds true. Perhaps judicial opinions themselves should make use of technological improvements. We’ll see.