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Bar News - June 17, 2015


Searching and Citing NH Court Orders Online

By:
Using Advanced Search

Google Advanced Search allows you to perform a keyword search of a specific website or portion of a website.

Zachary Gates, a member of the NHBA Committee on Cooperation with the Courts and an intellectual property attorney at Burns & Levinson in Boston (See his IP article) recently put together a one-page guide to Google Advanced Search. What follows is an edited version.

To use Google Advanced Search, direct your browser to google.com/advanced_search. There are many fields in which you can enter text or values, but you’ll want to focus on the ones where you can enter keywords and the site or domain you want to search.

To do a text search, type a string of keywords, such as “duty breach cause damages,” into the box marked “all of these words.”

If you are only interested in one particular word or phrase, such as “negligent entrustment,” type it in the box marked “this exact word or phrase” using quotation marks to search only for those words in that particular order.

If you have a variety of words of interest (e.g., you want cases discussing any of the phrases “duty of care,” “implied duty,” or “legal duty”), type them into the box marked “any of these words” (using quotation marks for any phrases).

Next, in the box marked “site or domain,” enter one of the following:

If you want to also restrict your search to a specific time period, you can do so, but your choices are limited. Google Advanced defaults to “anytime,” but you can restrict your search to the past year, month, week, day or 24 hours. You can also limit your search to specific document types, such as PDFs.

When you click the “Advanced Search” button at the bottom of the page, your browser will display the hit list, in a manner similar to what you would get with any other Google search. Simply click any link to see if it’s an opinion you want.

TIP: If an opinion/order at a linked page is text-searchable, press the keys “Ctrl” and “F” to generate a search box, in which you can put the word you want to see. This additional step makes a search much quicker.

Online case files may still be a few years away for the New Hampshire Judicial Branch, but some trial court judges are already posting select orders online, and the NH Supreme Court plans to launch a new public access records system by the end of this year.

Although orders issued by New Hampshire’s trial courts don’t create legal precedent, the ability to read and search the most significant orders is of interest to members of the bar who practice in New Hampshire courts. Following a recent discussion on this topic at a meeting of the NH Bar Association Committee on Cooperation with the Courts, Bar News began exploring what policies and considerations govern whether orders are posted online and how one might go about searching the trial court orders that are already available on the Internet.

On the NH Judicial Branch website, a page titled “Superior Court Orders,” which can be found in the Superior Court area of the site, allows Superior Court judges to post orders involving novel legal issues or issues that arise frequently. This page contains orders going back to 1997. A handful are posted each year, and the database is searchable using Google Advanced Search (see sidebar). This page is different from the “Frequently Requested Cases” section of the site, which contains high-profile cases and is updated by the Judicial Branch Public Information Office.

For busy trial court judges, posting orders online is not a first priority, but administrative judges in the NH Circuit Court and NH Superior Court say there is some benefit to making certain orders more readily available, especially when they would provide guidance to lawyers.

“Any judge can post any order at any time,” said NH Superior Court Chief Justice Tina Nadeau. “I encourage them to do that regularly, if they have a case that involves an important legal issue or a novel legal issue… The challenge is that we’re not an appellate court, so the orders have no precedential value, and a lot of our cases are purely factually driven, where the law is pretty settled, and it’s just a matter of, ‘What were the facts in this particular case?’”

Although posting some of the more routine orders online might have value for attorneys, the court must also consider the allocation of its resources, Nadeau added. “Posting sentencing orders would take [the judges] away from their jobs as judges, so it’s not a resource I think we should be using,” she said.

Merrimack County Superior Court Judge Richard McNamara, who presides over the state’s business court docket, regularly posts his orders online. He says he started doing so in response to a request from the NH Bar Association Business Law and Business Litigation Section.

“It doesn’t require a lot of resources to post the business court orders, because I don’t post every one; I just post them more complicated orders that might have general application,” McNamara says, adding that he would like to see more Superior Court orders online.

“It’s always very helpful to know what another judge is thinking, so I think it’s a good idea if you have a case of significance to let it be known. I have a great deal of respect for my colleagues on the Superior Court, so when I see orders from them on something that’s in front of me, it’s certainly helpful to see how they’ve approached it.”

Judge David King, deputy administrative judge of the NH Circuit Court, said he is in discussions with Judge Gary Cassavechia about posting certain orders of the complex trust and estate docket, which was established last year. As for other Circuit Court orders, King says, complex legal issues don’t come up often in other case types.

“What’s more apt to happen is a lawyer will take a decision that one judge writes and try to convince another judge with it,” says King. “… By and large, the cases turn on facts, not on the law, but I would like to see some of Judge Cassavechia’s complex trust orders posted. A lot of them are getting appealed, because there’s not a lot of law on the issues he’s deciding.”

King said he’s not sure whether orders in cases on the new complex marital docket will be posted online. “I just don’t think those decisions would be of any benefit to the marital bar,” he says.

The opinions of the NH Supreme Court, the state’s highest and only appellate court, create the body of law that serves as a legal precedent. That court is now posting its final orders online, so “Maybe we should let that settle out,” King said.

Supreme Court Order Citations

The NH Supreme Court began last September posting all of its final decisions in cases that are decided on the merits, rather than just its published opinions.

NH Supreme Court Rule 20, however, prohibits litigants and all courts from citing Supreme Court orders “in any pleadings or rulings in any court of this state.” But that could change.

After a June 5 public hearing, the NH Supreme Court Advisory Committee on Rules voted to recommend a proposed rule change that would distinguish between Supreme Court opinions (cited as binding authority as legal precedent) and orders (material cited for the soundness of its reasoning or persuasive authority). Opinions are usually only issued in cases that involve oral argument and are published in the New Hampshire Reports.

The rule change, which was first suggested during a recent public evaluation of the Supreme Court, would allow the citation of Supreme Court orders along with an acknowledgment that they do not create legal precedent. The recommendation to adopt the change will be formally submitted by the rules committee to the Supreme Court in August. The Supreme Court will likely put the recommendation out for comment in the fall and then decide whether to adopt the change, according to Carolyn Koegler, secretary to the rules committee.

Supreme Court Case Dockets

Meanwhile, case dockets for all cases appealed to the NH Supreme Court will soon be available online through a new website or subdomain of the NH Judicial Branch website, thanks to a case management systems upgrade being completed in advance of the NH e-Court Project rollout.

“As part of the upgrade of our case management system the vendor is going to be providing us with a public access website that will contain basic information about the cases,” says NH Supreme Court Clerk Eileen Fox.

The website, which Fox hopes will go live by the end of this year, will include the names of parties, the court a case was appealed from, the trial judge or agency below, and a listing of all the filings made by parties and any orders issued by the court. The documents would be listed by title, but only available for review at the Supreme Court building.

Fox says she hasn’t received much feedback from lawyers about the availability of the NH Supreme Court final orders online. Without a more specific search function on the court’s massive website, it’s likely that many bar members have found them difficult to use in a practical way. But with Google’s help and the possible rule change on the horizon, that may soon change.

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