Reported vs Unreported
Musing in the rain this morning on the nature of reported Vs unreported decisions and wondering just what the distinction means any more.
In the ‘old days’ (Simon C set me off on this train of thought with his recent posting) the distinction was very clear. Reported, print decisions were all you had access to. Finding information about recent, unreported decisions was very difficult. Doing any sort of comprehensive search was impossible. Of course we had a lot less to read! But now? When researching anything, and I’m not alone in this, I look at reported or unreported decisions, making no real distinction between the two, caring only about the jurisdiction, level of court, and whether the judge or judges have anything useful to say – and doing it online by scaning quickly for highlighted key terms. Our students, who have never known a time when they could not readily access all decisions, make little or no distinction. Few if any of them use print versions of reports. I was looking at our sets of DLRs the other day – shabby and worn til the mid 90s, pristine thereafter. A clear indication of what our users think. So we access reports online. We access unreported judgments online. The former have nice catchwords and headnotes and sometimes summaries of what counsel had to say. Vive la difference? Or is the end nigh?
I may post more on this, but I recently had occasion to read five memos from another firm, where every decision had a QL cite and few had court levels attached.
One I checked was clearly wrong: ran counter to all the authorities, cited none of them and it in turn had not been cited. It simply existed in the elctronic archive to be dug up with apparent validity.
One reason I like to see where something has been reported, preferably in multiple places, and that it has been frequently cited, is the assurance that it is perceived as having reliable status within the law.
If everything is shoveled into the archive, I have to spend more time making that assessment.
Nick has a good question. I was thinking about CANLII last week, and how all the cases are essentially unreported, and what the significance of this is. So I went back to an old title: Daniel, History of the Law Reports (1883). This looks too old to be relevant, but it is a compilation of the various debates around the abandonment of the nominates and the development of the Law Reports. It is helpful, I think, to remember that the Law Reports of England and Wales set a standard for law reporting that is still with us: authoritative t exts, value-added material (headnotes, keywords, case history, authorities cited), and most significantly an editorial process by an editorial board that selects only the most important decisions.
The electronic law reports are the same as their print counterparts; a reported decision on a database is distinct from an unreported decision in its selectivity and editorial comments. It is true that one is commercial and one free, but if I had to chose between two version of a case to cite before a court I would pick the law report version over the unreported version. Indeed, some courts are now issuing statements that they only want reported cases cited to them.
Not all the cases on CANLII have legal signifance.
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Neil – some of them are wrong
Interesting stream of comments, all. I would agree that there is a distinct and justifiable preference for reported versions of cases. I would estimate that we notify QL at least once a month of errors in their database; that’s just the ones we find without going looking for errors. I do not trust electronic unreported versions; a typo replacing “of” for “or” can make a significant difference in the meaning of a statement (had that one recently!)
I sometimes yearn for the “old days” when the sources we had to consult were so much more restricted, but I’m torn because the joy of electronic searching is seductive. Plus, the digital world is clearly here to stay, so we need to find ways to utilize it while maintaining quality control and integrity of the research.
Some questions re errors in databases, more than thoughts:
— Are the digital reports on court sites known to be error-prone? more than published reports? (because errors in print do occur)
— Does CanLII take its data direct from the court sites?
— Where/how does QL get its data?
— Isn’t there (shouldn’t there be?) an ur-text, a Q document, for each judgment? and wouldn’t that in fact be a digital document to begin with?
As I mentioned in my long screed on legal information, it’s the editorial judgment that I miss. And I suppose one way to look at the problem is that, failing the editorial filter, it’s up to lawyers to exercise judgment as to whether or not to cite a (digital, unreported) case.
I should clarify what I meant when I said that the judgment was “wrong”.
I was specifically referring to a QL decision, but there’s no reason why it wouldn’t have made it to CANLII.
As far as I understand, if it’s a judgment in a tribunal that CANLII reports, it will publish the judgment whatever it says. It doesn’t go through a rightness filter, as when Bora Laskin edited the DLRs.
I had a student cite a QL case as authority that the court can discount an award in fraud, for contributory negligence. The judge cited no authorities.
The Canadian and English law is clear – a fraudster cannot argue that his victim should have been more careful. SCC and HL decisions, recent decisions, say that.
So that’s why I say the QL case was wrong – it’s a rogue decision, which if I cite as authority any court will tell me they cannot follow it. And if the QL case had been appealed, it would have been reversed.
Granted I can – and likely should – read absolutely everything to ensure that the case stands for that proposition, and that it cites solid authority and is consistent with prior law. That much I can discern from it being reported in multiple places and itself being cited. It just takes more digging if I’m relying on Canlii or QL. I would likely place more weight on who the judge was.
I should stress that I’m referring to an Ontario SCJ decision – I’d obviously take much greater note of a Court of Appeal or Supreme Court of Canada decision, wherever it was reported.
Just a note to Brenda’s comment re: “The Gold Old Days”, I recall a 1980 report by the now defunct Canadian Law Information Council (CLIC) on the duplication of law reports. Although things are not electronic, I doubt that the duplication has ceased, and with the ready availabilty of unreported decisions has gotten worse.
Well as a member of the late lamented CLIC, and involved in the Duplication study, there was a feeling that law offices were paying repeatedly for the same information, and that the incremental value of each new version diminished. Most firms I know took a very hard look at the need to subscribe to new reporting services, though lawyers practising in those areas argued for their necessity.
But the driving concerns were financial and the thought that thorough research required looking in too many places.
I suspect that Canada was unique in the proliferation of specialty reporters. With the exception of CCH, the National Reporter system monolith wasn’t really challenged until the advent of Lexis and Web-based services. Law Book Co had its way until Austlii arose, and the English system is still largely intact.
Strikes me that this is another way in which the Canadian market for legal information is unusual. But what do our readers outside North America think. Pat?