Hoffmeister on Jurors in the Digital Age

Professor Thaddeus Hoffmeister of the University of Dayton School of Law has posted a paper entitled Jurors in the Digital Age. Here is the abstract:

Improper use of new technology by jurors inside and outside the courtroom has become so pervasive that commentators have coined new phrases to describe it: “Google Mistrials,” the “Twitter Effect,” and “Internet-Tainted Jurors.” Yet, despite the attention garnered, there has been little legal scholarship on this topic. The articles that have touched on the issue primarily focus on the benefits of technology and how it can be harnessed to aid in juror comprehension. This dearth of academic writing may be due in large part to the fact that the Digital Age is fairly new and still evolving and juror misconduct has historically been an under examined area of the law. This article attempts to fill that void by analyzing the detrimental impact of the Digital Age on sitting jurors and whether it can be lessened. While many of the issues examined in this article apply equally to civil cases, the primary focus of this article is on jurors deciding criminal cases.

The article begins, in Part I, by discussing the influence of the Digital Age on juror: (1) research; (2) communications; and (3) privacy. In Part II, the article analyzes possible ways in which to limit the negative impact of new technology on these three areas. While there is no panacea for these problems, this article focuses on several reform measures that could address and possibly reduce the detrimental effects of the Digital Age on jurors. The three proposed remedies are as follows: (1) improving juror instructions; (2) allowing jurors to ask questions; and (3) disclosing juror information to the opposing party. In Part III, the article goes on to examine what might occur if the aforementioned remedies are not implemented or prove ineffective. Specifically, the article suggests that the courts may, in the future, increase juror penalties and limit access to jurors.

As part of the research for this article, this author conducted the first-ever survey (“Jury Survey”) on jury service in the Digital Age. The Jury Survey Questions went to federal judges, prosecutors, and public defenders. The questions focused primarily on juror research but briefly touched upon juror communications and privacy. The purpose of the Jury Survey was twofold: (1) to discover from those who work with the legal system on a daily basis their views on the jury reform proposals suggested by this article; and (2) to learn about other possible reform measures. Of particular note, the Jury Survey Respondents, like this author, believe that improved and updated jury instructions are the best approach to combat online research and improper communications by jurors. In contrast, a significant number of Jury Survey Respondents doubted whether allowing jurors to ask questions would decrease the likelihood of juror research and communications to third parties. This article suggests the opposite and strongly encourages the use of juror questions.

HT @TheJuryExpert.

Roach Anleu & Mack on The Work of the Australian Judiciary: Public and Judicial Attitudes

Professor Dr. Sharyn Roach Anleu of the Flinders University Department of Sociology and Professor Kathy Mack of the Flinders University School of Law, have published The Work of the Australian Judiciary: Public and Judicial Attitudes, 20 Journal of Judicial Administration 3-17 (2010) (Issue No. 1). Here is the abstract:

Australians place a high value on the importance of courts, though public confidence in the courts and legal system is generally low. Very few Australians have any firsthand experience of their courts, suggesting that most of their information about courts and judges derives from print and electronic news and entertainment or what they are told about the experiences of other people. A disjuncture between the public’s high value of courts and low confidence in the justice system can present a profound challenge to Australia’s social fabric and its legal integrity. Closer analysis of public attitudes on a range of facets of judicial work generates a more nuanced and complex understanding of public opinion about the justice system.

This paper was based on research conducted as part of The Flinders University School of Law Judicial Research Project.

Thanks to the authors for providing the abstract.

Justiss on A Survey of Electronic Research Alternatives to Lexis and Westlaw in Law Firms

Laura K. Justiss of Southern Methodist University School of Law Library has posted a working paper entitled A Survey of Electronic Research Alternatives to Lexis and Westlaw in Law Firms, on SSRN. Here is the abstract:

Mrs. Justiss conducted a survey of law firm librarians in 2010 that identified electronic research database alternatives to Lexis and Westlaw and ranked them by subscription frequency. The survey included research databases for primary source alternatives; court docket and case information services; secondary sources for topical legal research and legal periodicals; financial, business and news sources; public records; and non-legal and legal-related sources, including intellectual property databases. The survey also generated information regarding suggested or mandated legal research policies in law firms for the use of alternatives to Lexis and Westlaw and examined their applicability to billable and non-billable research. Lastly, it examined the prevalence in firms of flat rate pricing agreements with Lexis, Westlaw or both.

HT Martha Sperry and @uMCLE.

New Information on Methodology of 2010 Corporate Counsel New Media Engagement Survey

New information about the methodology of The 2010 Corporate Counsel New Media Engagement Survey has been provided by Kevin Iredell, Vice President of ALM Intelligence, a consultant on the survey. Mr. Iredell provided the following information about the survey methodology, information which is not found in the survey report:

We received 165 responses to this survey.
We invited lawyers working as in house counsel to participate.
We sent the invitation to 10,000 individuals for a 1.65% response rate.
The 10,000 invited participants represent a random sample of in-house counsel.
One particular note of caution in looking at the results. Some of the cross tabs have an “n” less than 30. These were meant to be directional only as they are not statistically significant cell sizes.

In addition, Mr. Iredell said that the margin of sampling error for the survey was plus or minus “10%” “for the questions that were not cross tabbed,” and that the population of the study consisted of in-house counsel in the U.S.

The authors of the study — John E. Corey and Aaron R. Schoenherr of Greentarget — and Mr. Iredell declined to disclose the size of the population for the survey. Since the survey report also does not disclose the size of the population for the survey, readers of the survey report cannot determine the sufficiency of the sample size on the basis of information disclosed in the survey report. However, given that reputable surveys of the entire U.S. population typically use samples of under 3,000 — see, e.g., National Opinion Research Center, General Social Survey (target sample size: 1500); Pew Internet and American Life Project, Twitter and Status Updating, Fall 2009 (sample size 2,253) — the sample used in The 2010 Corporate Counsel New Media Engagement Survey is very likely of sufficient size.

The survey results were discussed in Amy Miller, Survey: Blogs Still Matter at Law Firms, Corporate Counsel, June 1, 2010.

Thanks to Mr. Corey and Mr. Schoenherr for entertaining my request for information respecting the survey methodology, and to Mr. Iredell for providing additional information about the survey methodology.

Recent Findings on UK Consumer Perceptions of Copyright Law

Consumer Focus, a UK statutory agency charged with safeguarding consumer interests, recently issued a report, entitled Time to Change the Tune: Consumer Research Briefing on Copyright (2010). The report describes findings of recent empirical research on UK consumers’ perceptions of certain aspects of copyright law. The following findings may be of particular interest to legal informatics or legal communication researchers:

• Approximately 15% of respondents reported engaging in digital media “format shifting” that violates UK copyright law;
• 38% of respondents who reported using a smartphone, iPod, MP3 player or MP4 player also reported engaging in such “format shifting”;
• 18% of respondents who reported using a mobile phone reported engaging in such “format shifting”;
• Only 26% of respondents stated they thought that “[c]opying a CD or DVD you have bought to another format so that you have a copy in more than one location” — which is prohibited by UK copyright law — was prohibited under that law;
• Only 17% of respondents stated that they thought that “[c]opying a CD or DVD you have bought to a computer for your own use” — which is prohibited by UK copyright law — was prohibited under that law;
• Only 15% of respondents stated that they thought that “[c]op[ying] a CD or DVD you have bought to an iPod, mobile phone or any other mobile device for your own use” — which is prohibited by UK copyright law — was prohibited under that law;
• On the basis of these results, the researchers concluded “that three quarters of British consumers believe that ['format-shifting'] is legal, while in fact it is not”;
• 73% of respondents stated that they agreed with the following statement: “I’m never quite sure what is legal and illegal under current copyright law.”

Please see the report for more information on these findings, and for a description of additional findings.

Respecting the methodology used by the researchers, the report states:

This report is based on quantitative consumer research that aimed to establish a comprehensive picture of the copyright related activities consumers engage in. The survey was carried out by Kantar Media which conducted 2,026 face to face interviews between 17 and 23 September 2009. Kantar Media interviewed consumers aged 15 or older and the research is representative of the British population.

Unless otherwise indicated all data is based on a sample of 2,026.

Saskia Walzel of Consumer Focus provided by email the following additional information about the methodology used by the researchers:

The respondents were not entirely randomly selected, but was based on random local sampling. [Below] you will find more information about the face-to-face omnibus through which the interviews were conducted. The Company use to be called BMRB, and was then bought by TNS, and is now Kantar Media.

We overall conducted a 20 min interview and the results published in [C]hange the Tune are only a fraction of that. We plan to publish the rest over the coming 3 months.

Re sample size – we went for 2,000 because we knew that about 60 percent of the British population has access to the internet, has used it recently, and because we wanted to make reliable statements for this sup group. If the data we are presenting is based on less than the full sample of 2,026, we indicate that.

Ms. Walzel provided the following additional information about why Consumer Focus decided to commission face-to-face interviews, rather than telephone or online consumer research:

This is because a telephone approach would generally exclude people who only have a mobile phone. This would have a high correlation with the group of people more likely to do activities such as format-shifting so they should be better represented through face-to-face. A self-completion element is also not possible on the phone making it more difficult to tackle the issue about coverage of unlawful activities. Online research would clearly skew things in the other direction and only represent people with access to a computer. The face-to-face omnibus delivers the biggest sample size in the time available (2,000 adults) and we have the option to include pictures if our piloting suggests this would be the best way of communicating some of the concepts.

The following information was provided on the face-to-face omnibus:

3.2 The BMRB omnibus delivers robust numbers in key sub groups BMRB Omnibus is part of the TNS Group, one of the largest market research agencies in the world. It is a sister company within the Kantar ‘Information Insight and Consultancy Division’ of WPP. BMRB Omnibus works closely with Kantar Media on the placement of TGI. The Face-to-Face Omnibus is a weekly survey providing 2,000 in-home interviews with a nationally representative sample of adults aged 15 and over across GB. It represents adults in England, Wales and Scotland in their natural proportions. The survey uses a Computer Assisted Personal Interviewing (CAPI) system.

We recommend interviewing all c.2,000 adults. This large overall sample size limits the confidence intervals around the results at the top level. Furthermore, it will allow us to ‘zoom in’ and analyse results by a variety of key sub-groups. These could be demographic groups or, for example, people who have specifically format-shifted content. With this base size it would be possible to zoom in on any group representing even only 5% or more of the population (at least 100 people).

[...]Regardless of the sample size we are able to ‘gross up’ results to reflect actual population size of around 49 million. A factor of about 24.5 is applied to all figures to achieve this (in ‘000s).

3.3 Our approach includes interviewing 15 to 17 year olds

We recommend including the full sample of adults from the age of 15. We have seen that 15 to 19 year olds are more likely to be involved in the activities you are most interested in and they are more likely to be creating user generated content. It will be important to include the views of this section of the population in our research.

3.4 Random locale sampling delivers an excellent representation of adults across Great Britain

The sampling technique we have developed and refined over many years is a tightly controlled form of random location sampling (random locale). This technique is used by the omnibus as well as the majority of BMRB’s random location surveys. It provides nationally representative samples at a fraction of the cost of random probability surveys.

One of the key benefits is that this is a fully inclusive approach. People are included within the sample frame regardless of their social characteristics and there are strict controls using ACORN classifications to ensure this is the case.

Random location is a single-stage sample design, taking as its universe Sample Units, a bespoke amalgamation of Output Areas (OA’s – the basic building block used for output from the 2001 Census) in Great Britain. Sample Units have an average size of 300 households and this is subject to far less variation than was with the case with EDs (Enumeration Districts). OA’s are grouped into Sample Units by CACI within ward and taking account of their ACORN characteristics.

The use of ACORN ensures all types of area are fully represented and that selection of respondents is largely taken out of the hands of the interviewers. In conventional quota sampling interviewers are given quotas to fill, usually from specified administration areas. When, for example, an interviewer is asked to complete a quota of AB respondents she will tend to go to a part of the district where she knows such individuals to be available. AB individuals living in mixed social class areas will have little chance of inclusion. A significant proportion of the population lives in mixed social class areas so this can lead to bias. On BMRB Face to Face Omnibus the interviewer is required to draw respondents from a small set of homogenous streets, selected with probability proportional to population after stratification by ACORN characteristics and region.

Likelihood of being at home and so available for interview is the only variable not controlled. Quotas are therefore set to control this element – age and working status within sex – giving a near to random sample of individuals within an SU.

Often companies’ over-issue addresses in order to achieve the required strike rate within the tight timetable and this can lead to distortions in the final balance of sample achieved. Typically we use 235 sampling units (sampling points) per survey. Precise sampling units of addresses combined with control of quotas affecting likelihood of being at home produces a sample profile that is similar to that achieved on The National Readership Survey (which uses random probability sampling) after four call-backs. Only a limited amount of corrective weighting is therefore needed to adjust the final results on our omnibus survey so that they are in line with the national demographic profile. This sampling approach means that quotas do not need to be set on the number of people with technology such as internet access DVRs or MP3 players as these groups will fall out naturally. Indeed, the face-to-face omnibus is the vehicle that has been providing BMRB with its internet user penetration and profile information for over 12 years.

Our analysis in section 2 has demonstrated that we will achieve robust numbers of people in these groups from our starting sample size of 2,000.

Thanks to Ms. Walzel for providing this information about the methodology.

7th Circuit eDiscovery Pilot Program Committee Issues Phase 1 Report

The Seventh Circuit eDiscovery Pilot Program Committee has issued Seventh Circuit eDiscovery Pilot Program: Report on Phase One: May 20, 2009-May 1, 2010 (May 2010). Here is most of the executive summary:

The Seventh Circuit Electronic Discovery Pilot Program was initiated in May 2009 as a multi-year, multi-phase process to develop, implement, evaluate, and improve pretrial litigation procedures that would provide fairness and justice to all parties while seeking to reduce the cost and burden of electronic discovery consistent with Rule 1 of the Federal Rules of Civil Procedure.

The Seventh Circuit Electronic Discovery Pilot Program Committee (“Committee”) targeted its schedule so it could prepare this Report on Phase One for presentation at the Seventh Circuit Bar Association’s Annual Meeting and Judicial Conference on May 3, 2010. This Report contains an explanation of the process and reasoning behind the Committee’s Principles Relating to the Discovery of Electronically Stored Information (“Principles”). It also provides a preliminary, anecdotal “snapshot” of the information gathered regarding the application of the Principles in cases during Phase One of the Pilot Program. In May 2010, the Committee will review the feedback it receives regarding Phase One and this Report. It will then commence Phase Two of the Pilot Program, which will run from July 1, 2010 to May 1, 2011. The Committee intends to present its Report on Phase Two in May 2011, before moving on to Phase Three.

The Committee consists of a diverse and growing group of attorneys, non-attorneys, and judges experienced with the discovery of electronically stored information (“ESI”). The Principles were developed and drafted throughout the summer of 2009. During that time, there were numerous meetings, which included substantial discussion and debate among the members of three subcommittees — the Preservation Subcommittee, the Early Case Assessment Subcommittee, and the Education Subcommittee — to address the key ESI issues identified at the Committee’s first meeting on May 20, 2009, and draft proposed principles in response to these issues. In September 2009, the full Committee reviewed and adopted the Principles, which became effective October 1, 2009, as a part of Phase One. The Principles are contained in Section 2 of this Report.

From October 2009 through March 2010, the Principles were tested in practice. Thirteen (13) judges of the U.S. District Court for the Northern District of Illinois, including five (5) district judges and eight (8) magistrate judges, implemented the Principles in ninety-three (93) civil cases pending on their individual dockets. In March 2010, survey questionnaires were sent to two hundred eighty-five (285) attorneys involved in the Phase One cases as well as to the participating judges. All thirteen (13) judges responded to the Judge Survey Questionnaires, and one hundred and thirty-three (133) attorneys responded to the Attorney Survey Questionnaires. The Committee’s Survey Subcommittee worked closely with the Institute for Advancement of the American Legal System at the University of Denver, and the Federal Judicial Center in Washington, D.C., which is the educational arm of the U.S. Courts, in designing and administering the Surveys. Data analyses of both Surveys are in the Appendix in Section 12.E. and available on-line at www.7thcircuitbar.org.

Because a limited number of judges participated in Phase One, a reader of this Report should be cautious in extrapolating the judges’ responses to the questions posed on the Phase One Judge Survey Questionnaire to the larger population of judges throughout the Seventh Circuit or the country. It would be best for the reader to treat the responses to the Judge Survey as anecdotal expressions of experienced observers. The particular district judges and magistrate judges participating in Phase One, however, were generally positive about the effectiveness of the Principles.

One hundred percent (100%) of the judges either “agreed” or “strongly agreed” that the involvement of e-discovery liaisons required by Principle 2.02 (E-Discovery Liaisons) contributed to a more efficient discovery process.

Over ninety percent (90%) of the judges thought the Principles “increased” or “greatly increased” counsels’ level of attention to the technologies affecting the discovery process and the demonstrated familiarity counsel had with their clients’ electronic data and data systems. Ninety-two percent (92%) of the judges agreed that the Principles had a positive effect on counsels’ ability to resolve discovery disputes before requesting court involvement and reach agreements on how to handle the inadvertent disclosure of privileged information or work product. A summary of these and other survey responses by the participating judges, along with the judges’ specific anecdotal comments and opinions, is contained in Section 9.A. of this Report.

The one hundred and thirty-three (133) attorneys who responded to the Attorney Survey Questionnaire constituted slightly more than forty-six percent (46%) of the two hundred and eighty-five (285) counsel for the parties in the Phase One cases. Each attorney was asked to respond with regard to his or her experience in connection with the single Phase One case in which he or she served as counsel of record. The attorneys responding to the Attorney Survey Questionnaire were fairly evenly divided as to the role of their respective clients regarding ediscovery in their Phase One case. Thirty-three percent (33%) identified themselves as representing a party primarily requesting ESI. Thirty-five percent (35%) represented a party primarily producing ESI. Twenty-five percent (25%) represented a party equally requesting and producing ESI. Seven percent (7%) represented a party neither requesting nor producing ESI. The cases that were selected by the participating judges to be a part of Phase One were at various stages in the litigation process when the Phase One Principles went into effect on October 1, 2009. Consequently, because the discovery phase had already commenced in some of the Phase One cases, not all of the questions posed in the Attorney Survey Questionnaire were applicable to all cases.

A substantial portion of the responding attorneys, forty-three percent (43%), reported that the Principles “increased” or “greatly increased” the fairness of the discovery process. Fifty-five percent (55%) stated they believed the Principles had no effect on the fairness of the discovery process, and just under three percent (3%) felt that the Principles decreased the fairness.

More than thirty-eight percent (38%) of the responding attorneys stated that the Principles increased the parties’ ability to resolve e-discovery disputes without court involvement, sixty-one percent (61%) stated the Principles had no effect on this, and less than one percent (1%) stated the Principles decreased their ability to resolve e-discovery issues without court involvement.

When asked whether the application of the Principles affected their ability to zealously represent their clients, seventy-four percent (74%) of the responding attorneys indicated “no effect” and twenty-two percent (22%) said the Principles increased their ability to zealously represent their clients. Only four percent (4%) of the attorneys indicated a negative effect.

A further summary of these and other survey responses by the participating attorneys, along with those attorneys’ specific anecdotal comments and opinions, is contained in Section 9.B. of this Report.

In addition, during Phase One of the Pilot Program, the Committee’s Education Subcommittee developed an “E-Discovery Program” section on the Seventh Circuit Bar Association’s website (http://www.7thcircuitbar.org) as a resource to assist lawyers in accessing the case law addressing e-discovery issues. The Education Subcommittee has presented two national broadcast webinars, the first on February 20, 2010, titled “Reforming Discovery: The Seventh Circuit E-Discovery Pilot Program,” (scroll down) and the second on April 28, 2010, titled “You and Your Clients: Communicating About Electronic Discovery.” Both webinars were free of charge to the more than 1,000 participants. More webinars are planned.

The Seventh Circuit Electronic Discovery Pilot Program was featured in the November 2009 edition of The Third Branch, which is the newsletter of the federal judiciary. The Pilot Program was also highlighted in numerous privately sponsored seminars and programs across the country. As demand for information about the Pilot Program continued to grow, the Committee established the Communications and Outreach Subcommittee to oversee the flow of information about the Pilot Program to persons or entities planning presentations and seminars regarding the Pilot Program.

During Phase Two, the Committee hopes to expand the geographic reach of the Pilot Program and increase the number of cases and participating judges. The Committee also intends to lengthen the implementation period for Phase Two so the Principles will be tested more comprehensively than in Phase One. The Committee may also modify the Principles based on the Phase One feedback. Additionally, the Committee may establish more subcommittees to address other identified areas of ESI discovery as the Pilot Program continues. [...]

Farnsworth et al. on Ambiguity About Ambiguity: An Empirical Inquiry into Legal Interpretation

Associate Dean Ward Farnsworth of Boston University School of Law, and colleages, have published Ambiguity About Ambiguity: An Empirical Inquiry into Legal Interpretation, forthcoming in Journal of Legal Analysis. Here is the abstract:

Most scholarship on statutory interpretation discusses what courts should do with ambiguous statutes. This paper investigates the crucial and analytically prior question of what ambiguity in law is. Does a claim that a text is ambiguous mean the judge is uncertain about its meaning? Or is it a claim that ordinary readers of English, as a group, would disagree about what the text means? This distinction is of considerable theoretical interest. It also turns out to be highly consequential as a practical matter.

To demonstrate, we developed a survey instrument for exploring determinations of ambiguity and administered it to nearly 1,000 law students. We find that asking respondents whether a statute is “ambiguous” in their own minds produces answers that are strongly biased by their policy preferences. But asking respondents whether the text would likely be read the same way by ordinary readers of English does not produce answers biased in this way. This discrepancy leads to important questions about which of those two ways of thinking about ambiguity is more legally relevant. It also has potential implications for how cases are decided and for how law is taught.

HT ELS Blog.

Dina & Hamel on The Canadian Legal Information Institute — Nine Years On

Yemisi Dina of the York University Osgoode Hall Law School Library and Louise Hamel of the Ontario Ministry of Attorney General Judicial Library Services, have published The Canadian Legal Information Institute–Nine Years On, 34 Canadian Law Library Review 182 (2009). Here is the abstract:

CanLII, the free virtual law library for Canada, has grown significantly in content and presentation in the last nine years. This article reviews and analyses the developments as well as the results of a survey of lawyers and librarians who use the database. The results of the survey indicate that many respondents rank CanLII as their first choice as a source for legal information and find it to be very user friendly.

The journal’s publisher has asked that the following information be included in this post:

The article described in this post was originally published in 2009 Volume 34, No. 4 of the Canadian Law Library Review.

Thanks to Ms. Dina for providing the abstract.

Redlich et al. on Self-Reported False Confessions and False Guilty Pleas among Offenders with Mental Illness

Professor Allison D. Redlich of the SUNY Albany School of Criminal Justice, and colleagues, have published Self-Reported False Confessions and False Guilty Pleas among Offenders with Mental Illness, forthcoming in Law and Human Behavior. Here is the abstract:

“Persons with mental illness may be at risk for false admissions to police and to prosecutors because of the defining characteristics of mental illness, but potentially because of heightened recidivism rates and increased opportunities. We surveyed 1,249 offenders with mental disorders from six sites about false confessions (FCs) and false guilty pleas (FGPs). Self-reports of FC ranged from 9 to 28%, and FGPs ranged from 27 to 41% depending upon site. False admissions to murder and rape were rarely reported. We also examined differences between those claiming false admissions and those not. Minorities, offenders with lengthier criminal careers, and those who were more symptomatic were more likely to have self-reported false admissions than their counterparts.”

Ubel on Credibility Lessening Tactics Utilized in the Courtroom by Male and Female Attorneys

Professor Sarah Ubel of the Washburn University Department of Communication has published Credibility Lessening Tactics Utilized in the Courtroom by Male and Female Attorneys, 8 Communication Law Review no. 2, at 42 (2008). Here is the abstract:

“Attorneys utilize Credibility Lessening Tactics (CLT) to make their opposing counsel appear less credible. Survey data were collected from attorneys to identify types of CLT attorneys experience directed at themselves and those they direct at others. Responses were unitized and content analyzed, resulting in the identification of eight CLT categories. The types of CLT attorneys reported included: Case Knowledge, Experience, Truthfulness, Legal Knowledge, Name-Calling, Distractions, Exclusion and Reference Gender. All CLT were equally reported by male and females except Reference Gender, which was reported only by females. Each category is defined, and the implications of using different types of CLT are discussed.”