In this issue
A Periodic Newsletter of the Young Lawyers Section of the Arkansas Bar Association
Hats Off 2 In the news 3 A Call to Leadership
But I Paid For It The Work for Hire Doctrine and the Independent Contractor Rashauna Norment
Tech Tip: Written, Spoken Words Timothy Penhallegon
Vol. 15 #1
Arkansas Bar Association Annual Meeting 13 The Lawyerâ€™s Guide to Using and Citing Wikipedia 14 Lee F. Peoples Regions Insurance 19
Arkansas Traveler 8 What Judges Want: An Interview With Judge Richard D. Taylor Lydia Whetstone 9 CLE Calendar 10 YLS Report Brandon K. Moffitt 12
Become a fan! Join the Group! Arkbar Young Lawyers Section
Assistant Editors Cory Childs Kristen S. Moyers Bethany Pike Andrew M. Taylor
What Judges Want Editor Mandy Thomas Recipes Editor Rashauna Norment Contributors Jennifer Carson Tim Penhallegon Melissa Sawyer H. Brock Showalter Daryl Taylor Jenny Teeter
YLS Young Lawyers Section Chair: Brandon K. Moffitt Chair-Elect: Brian M. Clary Sec-Treas: Anne Hughes White Immediate Past Chair: Anthony W. Juneau Executive Council: District A: Ryan Pettigrew (2011) Brian R. Lester (2012) Vicki S. Vasser (2013) District B: Cory D. Childs (2011) Grant M. Cox (2012) Tasha C. Taylor (2013) District C: Brian Cleary (2012) John Houseal (2011) Timothy R. Leonard (2013) At Large Representatives: Tessica Dooley (2013) Cliff McKinney (2011) Melissa N. Sawyer (2012) Law Student Representatives: University of Arkansas at Fayetteville School of Law: Malcolm Means UALR William H. Bowen School of Law: Kimberly JoAnne Eden YLS In brief
Graphic Design & Layout Anna Hubbard
Tech Tips Editor Keith Pike
Anthony Johnson, 2010 UALR Law School graduate, recently opened his own general practice firm, Johnson Law Firm, in downtown Little Rock. He will focus on business law, wills & trusts, bankruptcy & litigation. For more info check out his website at TheJLF.com.
Editor-In-Chief Tasha C. Taylor
J. E. Jess Sweere has been named a director in the law firm of Cross, Gunter, Witherspoon & Galchus, P.C. after working as an associate with the firm. CGWG has offices in Little Rock, Fort Smith and Northwest Arkansas. Jess practices out of the Little Rock office and his practice areas include labor relations, employment law, commercial/corporate law, transportation law and insurance defense. Carrie E. Bumgardner is now an Attorney at the firm of Hyden, Miron & Foster, PLLC, located in Little Rock.
Vince Morris, who was recently promoted to Acting Director of the Arkansas Legal Services Partnership, was recently involved in a partnership with a legal aid program in Maine. Their combined efforts resulted in building a website for free legal resources for individuals with military connections. It is called www. statesidelegal.org. The participants were invited to the Whitehouse for a website launch with Vice President Joe Biden, Laurence Tribe and the Attorney General. See the following news stories for more information about the launch of the site: (1) http://www.arlegalservices.org/node/533/; (2) http://www.whitehouse. gov/the-press-office/2010/11/19/vice-president-biden-announces-newinitiatives-help-homeowners-veterans-. Vicki S. Vasser of Matthews, Campbell, Rhoads, McClure, Thompson, & Fryauf P.A. in Rogers, was recently elected to serve on the RogersLowell Chamber of Commerce Board of Directors for the 2011-13 term. Kelly McNulty and Tabitha McNulty welcomed their second child, Margaret Grace McNulty, on December 31, 2010. Kelly McNulty also became a Shareholder at Gill Elrod Ragon Owen & Sherman, P.A. beginning January 1, 2011. Ashley O’ Neal and her husband, Jason Milks, welcomed a son (Basham O’Neal Milks) into their family on September 23, 2010. Andrew King of Williams & Anderson PLC in Little Rock and Crissy Monterrey of the Monterrey & Tellez Law Firm in Little Rock were recently named by Arkansas Business magazine as one of “The New Influentials: 20 in Their 20s.” If you have information on YLS Members who deserve a “Hat’s Off” or would like to submit ideas for articles, please contact the editor of “In Brief,” Tasha Taylor at Tasha@TaylorLawFirm.com.
In the news
YLS Spring Float Trip May 6-7, 2011 Buffalo River Float & Camping Trip RSVP by April 1, 2011 to Lorrie Payne firstname.lastname@example.org
Nomination entry forms are available for this year’s Young Lawyers Section Frank C. Elcan II Award This award is given in recognition of a lawyer who has demonstrated exceptional leadership skills in and made outstanding contributions to the Young Lawyers Section of the Arkansas Bar Association. This award will be presented at the Annual Meeting in Hot Springs in June. Deadline for submission of nomination forms: Tuesday, March 15, 2011. Nominations may be submitted by any Association member. To request an entry form, please contact Lorrie Payne at the Arkansas Bar Association at (501) 375-4606 or (800) 609-5668 or email email@example.com. Nomination entry forms are available for this year’s Arkansas Bar Foundation and Arkansas Bar Association Awards. These awards include: (1) Outstanding Lawyer; (2) Outstanding Lawyer-Citizen; (3) C.E. Ransick Award of Excellence; (4) James H. McKenzie Professionalism Award; (5) Equal Justice Distinguished Service Award; and (6) Outstanding Local Bar Association. These awards will be presented jointly by the Foundation and the Association at the Annual Meeting in Hot Springs in June. Deadline for submission of nomination forms: Friday, April 8, 2011. Nominations may be submitted by any Association member. To request an entry form, please contact Ann Pyle at the Foundation at (501) 375-4606 or (800) 6095668 or firstname.lastname@example.org.
Sign up for the Bowen 5K Register for the inaugural UALR William H. Bowen School of Law’s 5K race, 8:00 a.m. February 19, 2011. All of the net proceeds from the race will go to the Arkansas Judges and Lawyers Assistance Program (JLAP) with the remaining funds re-invested for future Bowen 5k races. To register, go to GetMeRegistered.com
2011 Leadership Academy Congratulation to the twenty attorneys that have been selected to participate in the 2011 Arkansas Bar Association Leadership Academy. The inaugural class brings together a diverse group of attorneys from across the state who have been identified as emerging leaders. Participants attended the Opening Retreat in January, and will attend three additional sessions that focus on different areas of leadership that are designed to create a diverse network of lawyers with the knowledge, skills, and values to provide dynamic leadership to the profession, their communities, and the state. Amber Wilson Bagley
Jason L. Horton
Leon Jones, Jr.
Paul A. Prater
Keesa M. Smith
Cross, Gunter, Witherspoon & Galchus, Little Rock
Jason Horton Law Firm, Texarkana
Jones Law, LLC, Bentonville
Hosto, Buchan, Prater & Lawrence, PLLC, White Hall
Office of Governor Mike Beebe, Little Rock
Matthew R. House
Gwendolyn L. Rucker
Barry E. Coplin, P.A., Little Rock
Anthony W. Juneau
Friday, Eldredge & Clark, LLP, Little Rock
James, Fink & House, P.A., Little Rock
Mitchell, Williams, Selig, Gates & Woodyard, PLLC, Rogers
David L. Jones
Leslie J. Ligon
Wright, Lindsey & Jennings LLP, Little Rock
U.S. District Court / Western District of Arkansas, El Dorado
Wilson & Associates, PLLC, Conway
Coby W. Logan
Jay L. Shue, Jr.
The Law Offices of Amy Freedman, Texarkana
Hollie Greenway Rabal & Greenway, PLLC, Centerton
Paula Juels Jones Deputy Prosecutor, 23rd Judicial District, North Little Rock
Arkansas Department of Finance & Administration, Little Rock
United States District Court, Little Rock
Jonathan P. Sellers
Jocelyn A. Stotts Vicki S. Vasser Matthews, Campbell, Rhoads, McClure, Thompson, & Fryauf, PA, Rogers
William Z. White Arkansas Attorney General’s Office, Little Rock
Mays & White, PLLC, Heber Springs
A Call to Leadership in the Arkansas Bar Association Spring 2011 Schedule of Elections Nominating Petitions The House of Delegates and Board of Governors address matters important to the legal system, our Due March 31, 2011 Association and every attorney in Arkansas. For example, the House decides Association policy on new initiatives before the Arkansas Supreme Court and on legislation before the General Assembly affecting the legal system. Recent examples include rules governing electronic discovery and the Association’s legislative package. The Board handles the business aspects of the Association and tracks trends affecting the legal profession. Being in the House or on the Board is a chance to get acquainted with lawyers all over the state, to be recognized as the representative of lawyers within the individual’s district, and to help shape the future of the profession. Election Process For both Delegates and Governors a nomination petition, signed by three current members of the Association who reside in the geographical area of election, must be filed with the Secretary at the Arkansas Bar Association, 2224 Cottondale Lane, Little Rock, AR 72202, no later than March 31, 2011. A sample petition is available from the Association’s office or website. The petitions, current members of both bodies, and district maps are listed on the Association’s webite at www.arkbar.com under the “About Arkbar” tab for each governing body. YLS uses the three state bar districts (A,B,C) that are also utilized by the House of Delegates as listed in Article 4, Section 4 of the Constitution.
Board of Governors District County(ies) 1 Governor to be elected 3-BG Arkansas, Ashley, Chicot, Cleveland, Crittenden, Cross, Desha, Lee, Lincoln, Monroe, Phillips, Poinsett, Prairie, St. Francis, Union 5-BG Garland, Saline, Hot Spring, Grant, Dallas 6-BG Benton 7-BG Washington 15-BG Pulaski 16-BG Pulaski All Are Three-Year Terms Qualifications for Board of Governors The attorney must reside in the geographical area for the Governor’s position and must have served one year in the House of Delegates or must have been an Association member for seven years by the time of joining the Board of Governors in June.
Young Lawyers Section YLS Chair-Elect, Secretary/Treasurer & District Representatives Nominating petitions Must be Filed by April 1, 2011 For more information on nominations and qualifications of officers go to What’s New on www.arkbar.com The YLS Officers shall be elected by the majority of those present and voting at the Annual Meeting of the Young Lawyers Section, which will occur during the Association’s June Annual Meeting. Chair-Elect elected from District A (one-year term) Secretary/Treasurer elected from any District (one-year term) Representative District A (three-year term) Representative District B (three-year term) Representative District C (three-year term) Representative District C (one-year term)
YLS In brief
House of Delgates District County(ies) No. of Delegates to be elected A-1 Benton 1 Delegate A-2 Washington 4 Delegates A-3 Crawford, Sebastian, 2 Delegates Franklin & Johnson A-4 Polk, Scott, Logan, Yell, 1 Delegate Perry & Conway A-5 Madison, Carroll, Boone 1 Delegate & Newton B Pulaski 10 Delegates C-3 Craighead 1 Delegate C-5 Crittendon, Cross, 1 Delegate St. Francis, Woodruff, White & Cleburne C-7 Lonoke, Prairie & Monroe 1 Delegate C-8 Grant, Jefferson, Arkansas, 1 Delegate Lincoln, Phillips & Lee C-9 Dallas, Cleveland, Ouachita, 1 Delegate Calhoun, Bradley, Drew, Ashley, Desha, Chicot, Columbia, & Union C-11 Montgomery, Howard, Pike, Clark, 1 Delegate Sevier, Little River, Hempstead, Nevada & Lafayette C-12 Garland 1 Delegate C-13 Saline & Hot Spring 1 Delegate All Are Three-Year Terms Qualifications for House of Delegates The attorney must be an Association member residing within the Delegate District as defined by Article XVI Section 2 of the Association’s Constitution.
But I Paid for It! The Work for Hire Doctrine and the Independent Contractor By Rashauna A. Norment In general, the work for hire doctrine provides that a hiring party is the author and the owner of the copyright in a work created by an independent contractor or by an employee within the scope of employment. This is an exception to the general rule that one who creates a work is the author and owner of the copyright in the work. Problems arise when copyright ownership is not addressed before the creation of the work. The hiring party may expect that, since he paid for the work, he “owns” it and is free to use it as he wishes. Under the Copyright Act of 1976, the independent contractor not only may own the copyright in a work in certain situations, but also may be able to limit the hiring party’s activities concerning the work. This discussion is a brief synopsis concerning the work made for hire doctrine as it applies to the independent contractor. Independent contractors may include designers, developers, programmers and artists. Ellis v. Black presents one example of a work not being considered a work for hire. In Ellis, a hiring party hired an independent contractor to develop a brochure for the hiring party’s business. The parties did not sign a written agreement stating that the brochure would be considered a work for hire. The hiring party continued using the brochure after the independent contractor ended the relationship. The independent contractor then sent the hiring party a letter, withdrawing permission to use the brochure. The hiring party argued that since he had already paid for the brochure, he should be able to continue to use it. The independent contractor filed suit, alleging copyright infringement. The hiring party argued that the brochure was a work for hire. He argued in the alternative that the work was used under an implied non-exclusive license, or that he was a co-owner of the work. The court held that since there was no evidence of a written agreement between the hiring party and the independent contractor confirming that the work was a work made for hire, the brochure was not a work for hire. The court noted that questions still remained as to whether the brochure was a joint work, and whether the independent contractor had revoked any implied non-exclusive license. See generally, Ellis v. Black, 2009 U.S. Dist. LEXIS 36621 (W.D. Ark., April 27, 2009). The Work Made For Hire Doctrine and a Specially Commissioned Work A work may be considered a work made for hire if: (1) the parties sign an agreement stating that the specially commissioned work
shall be considered a work made for hire; and (2) the work falls within in one of the following statutory categories: • • • • • • • • •
as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas.
17 U.S.C. § 101. In many instances, the hiring party hires the independent contractor with a verbal agreement and simply pays for the work. In other instances, the hiring party has a written agreement in place, specifying that the work shall be considered a work made for hire, but the work does not arguably fall within the statutory categories. In both instances, the work may not be considered a work for hire; therefore, the independent contractor arguably is the owner (or at least a co-owner) of the copyright in the work. To assure ownership of copyrights, the hiring party may consider including language specifying that if the agreement does not meet the requirements for a work for hire, then the independent contractor shall assign all right, title and interest in the work to the hiring party. By adding this provision, the agreement may cover situations where the work does not neatly fall into one of the statutory categories. Such works could include sculptures, computer programs, websites, photographs, or marketing materials. Rashauna Norment is a registered patent attorney at Calhoun Law Firm, where her practice focuses on prosecuting patent applications, as well as applications to register copyrights and trademarks, forming legal entities for businesses, and assisting in litigation involving infringement and business disputes. You can reach her at R.Norment@CalhounLawFirm. com. 5
The hiring party may have a few defenses v. Glass Onion, Inc., 723 F. Supp. 2d if the independent contractor later argues 1138, 1147 (W.D. Mo. 2010). Courts have that the work is not a work for hire and opined that a non-exclusive license arises demands that the hiring party stop using when: (1) a person (licensee) requests the the work. Two defenses include: (1) that creation of a work; (2) the creator (licensor) he is a co-author and co-owner of the work makes the particular work and delivers it (and consequently may continue using the to the licensee; and (3) the licensor intends work), or (2) that the work is used under an that the licensee copy and distribute his implied non-exclusive license. work. Id. A non-exclusive license supported If sufficient evidence exists that the hir- by consideration is irrevocable. Id. at 1150. ing party participated and contributed to Before the creative work commences, the creation of the work, a defense to a both the hiring party and independent copyright infringement claim (that he is a contractor should discuss their expectations co-author and co-owner of the work) may and understandings concerning who owns be successful. The Copyright Act defines a the copyright in the work being created. If “joint work” as “a work prepared by two or the independent contractor wants to retain more authors with the intention that their copyright ownership in the work, then a contributions be merged into inseparable or written agreement should specify that the interdependent parts of a unitary whole.” work is not considered a work for hire and 17 U.S.C. § 101. Co-owners are not liable that the independent contractor is the copyfor copyright infringement of the same right owner. In contrast, if the hiring party work. See, e.g., Words & Data, Inc. v. GTE wants to have copyright ownership in the Communications Services, Inc., 765 F. Supp. work, he must determine whether that work 570, 574 (W.D. Mo. 1991). falls within one of the statutory categories A non-exclusive license may be implied or whether an assignment is necessary. If from conduct, with consent permitting use the work does fall within one of the catof the copyrighted work inferred from the egories, then a written agreement should TS2011AdEP-HalfPg:TS2011AdEP-halfpg 8/24/10 1:40that PM the Page 1 is considered a work copyright owner’s conduct. See, e.g., Teter specify work
for hire. However, if the work does not fall within one of the statutory categories, then at a minimum, the agreement should specify that the independent contractor assigns all right, title and interest of the work to the hiring party. For more information, please visit http:// www.copyright.gov. Please contact an attorney familiar with intellectual property and copyright issues for questions concerning your specific situation. n
Become a fan! Join the Group! Arkbar Young Lawyers Section
Conference: April 11–13, 2011 EXPO: April 11–12, 2011 Hilton Chicago, Chicago, IL
Special Discount for Bar Association Members! Get closer to technology with a discount on ABA TECHSHOW registration for members of the Arkansas Bar Association ___________________________. Simply register under the Event Promoter rate and enter your association’s unique code: 1121 EP__________.
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YLS In brief
Written, Spoken Words
by Timothy Penhallegon Like many other recent graduates of law school, I had not dictated a single word before I began my law practice. I had the requisite boring keyboarding class in middle school and learned to type very well in college and law school. But, I still speak faster than I type and have found voice recording and transcription useful in my practice. New technology has made voice recording and transcription more accurate and more affordable than in the past, and attorneys looking to produce documents should consider some of these options. Possibly the most convenient of the new voice recording technologies are smartphone applications. One application for the iPhone is Recorder by Retronym ($0.99 on iTunes). Recorder can record through iPhone microphones as well as outgoing telephone calls, and the recordings can be easily emailed. For Android smartphones, the Rehearsal Assistant application by urbanSTEW is recording freeware. Both programs give users the convenience of using their telephones as sound recorders. But, the programs use telephone battery charge and the recordings can go above 1MB per minute, which can quickly exhaust data transfer plans if they are wirelessly transferred. Also, file formatting may be an issue and should be examined before using either program. This is a good option for people who want to carry as few accessories as possible, but still want the convenience of recording calls and conversations. Another convenient and novel approach to voice recording is the “smart pen.” Smart pens use digital technology to perform functions beyond laying ink lines on paper. Livescribe offers two versions of the smart pen that record voice while you write. The Pulse smartpen (about $185 from Amazon.com) not only records voice, but also uses an infrared camera to record what is written on special gridded paper. The pen can play back voice recordings in synch with the writings on the page, and has available voice transcription software. There are also existing transcription technologies that have been upgraded and expanded. The Dragon software package by Nuance transcribes recorded words and controls computer functions by voice. Nuance offers a great number of different transcription software packages, including applications for the iPhone and iPad, but the full software suite tailored to the law practice can cost upwards of $1,000.00. In addition to the high cost, the user has to “teach” the computer to recognize particular words, and may require the user to change their diction to be accurately transcribed. Technological advancements have improved dedicated portable recording devices, too. Current quality digital recorders contain high memory capacity, software interfaces, and rechargeable batteries. Sony offers a line of digital recorders packaged with Dragon software for voice recognition that can automatically create document files from recorded conversations. Dedicated digital recorders have the advantage of being small and lightweight, and they do not devour battery charge necessary for emergency telephone calls. There are many options available to mechanically turn the recorded word into the written word. Because the new software and hardware technologies are available to both large and small budgets, dictation may be a way to increase productivity in your firm, even if you took a middle school keyboarding class. A 2009 graduate of the University of Arkansas School of Law Tim Penhallegon is an associate at the Watson Law Firm, P.A., in Springdale. He can be contacted at 479-750-7717, or at email@example.com. Tim entered the law profession after serving seven years as a helicopter crew chief in the Air Force. His practice includes family law and litigation. 7
Photos courtesy of Arkansas Department of Parks & Tourism
This is the place to share your tips and reviews of the unique restaurants, hotels, B&Bs, hiking trails, entertainment venues, etc., that you have encountered while traveling around Arkansas. To submit your Arkansas Traveler review (in 150 words or less) about your unique encounter with all things cool in Arkansas, e-mail Tasha@ TaylorLawFirm.com. 8
YLS In brief
The Pantry, 11401 Rodney Parham, Little Rock, AR 72212. Lunch 11am-4pm,
Dinner 4pm-midnight. Happy Hour M-F 4-6 and 10-till close. www.littlerockpantry.com. If you are looking to be “in the know” on the foodie scene in Little Rock, try out The Pantry. While it claims to serve primarily German/Eastern European fare, the menu is quite diverse. Perhaps a more apt description is Continental European with American Standards. The appetizers vary from spicy buffalo fried shrimp, to a briny black olive spread, to a charcuterie board with house smoked sausages, cheese and pate which is great for nibbling. The dinners are well-portioned plates of bratwurst and potatoes, two kinds of schnitzel, and other “stick-to-your ribs” entrees. The Pantry also is fully equipped to serve any manner of adult beverage need, be it wine by the glass, a decent pint, or a twist on your normal cocktail. Whether you are looking for a tasty lunch with a client, a leisurely dinner a deux, or a happy hour with friends, you’ll find it in The Pantry. — Mandy Thomas is a partner at Meadors Law Firm, PLLC. Her practice areas include civil litigation, bankruptcy, and estate planning. You can contact Mandy at firstname.lastname@example.org.
Kenda Drive-In Theater, Marshall, Arkansas, www.kendadrivein.com Being a member of the Baby Boom Generation is not a prerequisite to enjoying an authentic drive-in movie experience in Arkansas. Take a step back in time for your next movie-going adventure by heading to the Kenda Drive-In Theater in Marshall, Arkansas (100 miles north of Little Rock on Highway 65). The Kenda features first run films at deep discounts (only $4 for adults and $2 for kids). Forget those old-school speakers that hang from the windows—instead, tune in to the Kenda radio station and recline your bucket seat to enjoy your movie with your own surround sound. No kids on cell phones will interrupt your movie experience here. Heaters are provided in the winter time to keep you warm, too. When you visit the Kenda, be sure you heed their advice: “Come early and hungry.” Not only is their food great, but it’s an incredible value. If the drive-in experience doesn’t convince you that you have traveled back in time, their food prices will. A large drink and large popcorn with butter will only set you back $4.25 (with tax)! Want some milk duds? That will be 75¢. In addition to the regular movie fare, the Kenda also offers BBQ sandwiches, double cheeseburgers, Frito pies, BBQ nachos, cotton candy, and more! On my last trip to the Kenda, we paid less than $20 for 2 adult tickets, 2 burgers, 1 large popcorn, nachos, 2 drinks, and 2 packages of candy (we didn’t go early, but we definitely went hungry!). Even with gas money spent on the trek, that was a bargain and more fun than any traditional theater experience east of Hollywood! Click here to follow the Kenda Drive-In on Facebook. — Tasha C. Taylor is a Shareholder and Managing Attorney at Taylor & Taylor Law Firm, P.A., located at 124 West Capitol Avenue, Suite 1805, in Little Rock, Arkansas 72201. You can reach Tasha by email at Tasha@ TaylorLawFirm.com or by phone at (501) 246-8004.
What Judges Want
An Interview with Judge Richard D. Taylor by Lydia Whetstone
As the Chief Judge for the United States Bankruptcy Court for the Eastern and Western Districts of Arkansas, Judge Richard D. Taylor sees the best and the worst in litigation. Judge Taylor’s time in private practice and on the bench has taught him that preparation and effort are key in making a good impression before any judge. The following are answers Judge Taylor provided to my questions that I thought many young lawyers would like to ask him. Where did you go to college and law school? Centenary College of Louisiana. Then, U of A Fayetteville for law school. Why did you decide to go to law school? From grade school on, I thought I’d go to law school. It just always appealed to me for reasons not fully known. Then, I took the LSAT and scored about what you’d get for spelling your name correctly. I took that as a sign and sat out a year. A friend of mine from Centenary went on to Fayetteville and told me I’d like it up there. So, I applied and got in. Ultimately, law school was the right decision. I just wasn’t sure after the LSAT debacle. Where did you decide to practice after you graduated from law school? Friday, Eldredge and Clark kindly offered me a job, and I’ll always be grateful for the time I spent there. How did you end up practicing bankruptcy? I was hired to work with bank clients, mostly loan documentation and usury opinions. The new code had just gone into effect, and I had taken David Epstein’s bankruptcy class during my last semester. So, a partner asked me to get more involved in bankruptcy. It was a natural complement to
my bank work, and I liked that it involved both litigation and transactions. How did you decide to become a bankruptcy judge? The bankruptcy bar knew that two positions would be opening up in early 2000. Judge Fussell encouraged me and several others to apply. Frankly, that’s when I started thinking real hard about the position and my prospects. My biggest concern, in addition to the selection process, was trying to think through how I should handle the job if selected. What do you enjoy the most about being a judge? I like the satisfaction of, hopefully, doing the task correctly and in a manner consistent with how a court should properly administer justice. We have a great justice system, tempered by a lot of factors, not the least of which is human frailty. I hope I can contribute to the system by mitigating frailty with preparation and attention to both the law and the facts. What do you expect from the attorneys that come before you in court? That is a rather interesting question. Licensed attorneys have a great deal of latitude and discretion in how they represent their clients. Good lawyers work harder, frame the issues well, give better advice and counsel, know when to settle, are prepared, better articulate the facts, and argue persuasively. Additionally, good lawyers recognize that there are significant areas of common interest, even in the most litigious case. In those instances, good lawyers, because they are competent and trusted by the other side, achieve better results for their clients. As a judge, I take what they bring me. I certainly hope that lawyers appear in court well prepared and ready to present their case. I also have the reasonable, and in fact enforceable,
expectation that they will conduct themselves in an appropriate manner while in the courtroom. I cannot, however, cure any deficiencies in the preparation of their case and can rule only on the facts and issues presented. Is there a code of conduct bankruptcy attorneys expect from the other lawyers they work with? Yes. Bankruptcies frequently present cases where mutual selfinterests are sharply juxtaposed against specific and discrete areas of dispute. More often than not, the parties recognize the statutory requirements of the code and can substantially agree on their treatment in a plan. But, there may remain specific areas that need to be resolved by the court. Given the amount of mutual self-interest, bankruptcy lawyers depend a great deal on the trustworthiness of opposing counsel. Bankruptcy proceedings frequently involve accelerated hearings with little or no discovery. The lawyers work with each other and cooperate on matters of discovery, exhibits, and trial presentation. The bankruptcy bar is a small fraternity, and how they interact with each other is extremely important and can have a significant positive or negative effect on your practice and ability to adequately represent your client’s interest. What are some of the biggest mistakes attorneys make when appearing in your court? Every court wants a legal path to do as you ask. Be prepared with the specific legal basis and the appropriate elements for the
Lydia Whetstone is an attorney advisor for the Social Security Administration’s Office of Disability Adjudication and Review. You can contact Lydia at email@example.com. 9
Is there any advice you would like to give to young lawyers that are appearing in court for the first time? Yes. We know it’s your first time—at least in front of us. No need to apologize or tell us that you are brand new. Most judges have no interest whatsoever in embarrassing you. We have all been where you are now. What I’m looking for is preparation and effort. Bankruptcy, like a lot of other areas of the law, is difficult. I am absolutely confident that you will make mistakes, just like me and every other lawyer out there. Learn from your mistakes; just don’t make them from a lack of effort or willingness to prepare for a hearing. Watch other trials, see what other lawyers do (good and bad), ask questions, and develop a comfort level in court. It comes with time, and you’ll be fine. n
How would you advise a lawyer to deal with a difficult client and/or opposing counsel? Be direct, stay on top of them, be absolutely in charge of your emotions, letter them up if you have to, and, if necessary, fire the client. Same with difficult counsel except you can’t fire them. You can, however, stop trusting them, do everything by the book, and take the higher—and sometimes more difficult—road. Remember, each client is in it for the short-haul; you are in it for the long-haul. Do not let a bad client pull you down and do not let a bad lawyer turn you into somebody you are not.
relief you are requesting. A good opening defines and frames what the court is about to hear. Your fact finder should not have to struggle to know what your case is about, and a good opening is very much appreciated. And never say, “I don’t do bankruptcy.” Admitting malpractice is not your best opening move.
Market Your Law Firm for only $75/year
Notice of CNA Insurance Rate Increase Effective January 1, 2011, CNA Insurance, our Bar endorsed insurance carrier, will be implementing a 3% base rate increase. Costs have been trending up over the last five or six years due to claim inflation while average rates have remained relatively flat. We have been fortunate to have had many years with no rate activity and these changes are a small step to help prevent any deterioration and protect the health of the Arkansas Bar Association Professional Liability Plan. We feel it prudent that issues are addressed as they arise and are manageable, rather than having to deal with potential larger obstacles that could require more drastic action later on. 10
YLS In brief
50th Annual Natural Resources Law Institute February 24-25, 2011, Hot Springs 2nd Annual Northwest Arkansas Conference March 4, 2011, Rogers Labor & Employment Law March 14-15, 2011, Little Rock Criminal Law April 1, 2011, Little Rock E-Discovery April 8, 2011, Little Rock Bankruptcy April 14-15, 2011, Little Rock 15th Annual Environmental Law Conference April 28-30, 2011, Little Rock Arbitration & Mediation Advocacy Workshop May 4, 2011, Little Rock Workers Compensation May 13, 2011, Little Rock 2011 Annual Meeting June 8-11, 2011 Hot Springs Best of CLE June 20-24, 2011 Little Rock Best of CLE-NW June 29-30, 2011 TBA
For more information contact Lynne Brown or Kristen Scherm 800-609-5668 or 501-375-4606 firstname.lastname@example.org or kscherm@ arkbar.com OR go to www.arkbar.com
Bacon Corn Chowder A warm chowder for those long wintery evenings Ingredients: 6 bacon strips 1 small onion, diced ¾ cup celery, diced 1 cup of water 1 cup potato, diced 1 cup of milk 1 can cream-style corn (14.75 oz) ½ teaspoon of salt ½ teaspoon of seasoned salt ¼8 teaspoon of pepper ¼ teaspoon of garlic powder Ready in approximately 40-45 minutes Serves 4 •Cook the bacon over medium heat in a saucepan until the desired crispness is reached, then drain. •In same saucepan, sauté the celery and onion over medium heat for 10 minutes. •Add the bacon (crumbled) back into the saucepan and cook for another 3-5 minutes. •Add the water and potatoes. Cover and simmer for 15-20 minutes, or until potatoes are tender. •Stir in corn, milk, and seasonings over medium heat until chowder is thoroughly heated (but not boiled). •Serve. Leftovers may be refrigerated or frozen. Note: for a thicker chowder, add a couple tablespoons of flour. Adapted from allrecipes.com
Rashauna Norment is a registered patent attorney at Calhoun Law Firm, where her practice focuses on prosecuting patent applications, as well as applications to register copyrights and trademarks, forming legal entities for businesses, and assisting in litigation involving infringement and business disputes. You can reach Rashauna at R.Norment@CalhounLawFirm.com. Rashauna enjoys experimenting with cooking, working in her flower garden trying to develop a green thumb, and spending time with family and friends. 11
Young Lawyers Section Report
by Brandon K. Moffitt
Abundance of Opportunities to Serve in YLS Originally published in the Winter 2011 issue of The Arkansas Lawyer magazine. Reprinted with permission.
Nominations for Elections Due April 1, 2011
One of my goals when seeking the Chair position of the Young Lawyers Section (YLS) was to increase the membership’s knowledge about leadership/volunteer opportunities within the Bar Association and increase participation in the activities we sponsor. My initial step toward meeting the goal was to expand the use of the Section’s seven standing committees. I am happy to report that we have over 50 new members serving on a committee within the YLS this year. This growth has allowed the YLS to expand our quarterly publication, In Brief, plan several social events across the state, as well as continue our work on 18 & Life to Go: A Legal Handbook for Young Arkansans. I am excited about the increased participation on the committees and I look forward to the additional progress over the course of this year. The next step towards reaching the goal is to increase the number of candidates for the YLS Executive Council and Officer positions that we elect at the Annual Meeting in Hot Springs. Each year three Executive Council members (one from each of the State’s Bar Districts) and the Section’s Secretary/Treasurer are elected by the membership. Each District Representative to the Executive Council is elected for a threeyear term and the Secretary/Treasurer of the Section is elected for a one-year term. This year we will also have an additional position for a one-year term from District C to fill the District Representative vacancy created by Chair-Elect, Brian Clary. There are only a couple of guidelines you must meet in order to seek an elected position within the YLS. First and perhaps the most obvious, you must be a member of the YLS. Membership in the YLS is automatic with your membership to the Arkansas Bar Association as long as you are: under age 36 12
YLS In brief
or have been admitted to the practice of law within the last five years (regardless of age). Second, only members residing in the appropriate Bar District to which a position is designated shall be eligible to seek election. A candidate’s residence is determined by the county in which the individual maintains his or her primary practice. Of course, a candidate for Secretary/Treasurer may reside in any of the three districts since the position is elected by the entire membership. Third, candidates for the District Representative position must be nominated by a YLS member, who resides within the district. This includes any individual nominating himself or herself for the position. Again, since the Secretary/Treasurer is elected by the entire membership, any member can submit a nomination for the position regardless of the bar district in which you reside. Finally, and most importantly, all nominations for the upcoming election must be received by the Associate Director of the Arkansas Bar Association, Lorrie Payne, by April 1, 2011. Nominations may be delivered by 1) personal delivery to the Bar Center; 2) electronic mail to lpayne@arkbar. com; 3) fax to (501) 375-4901; or 4) U.S. Postal Mail to the Bar Center. Any nomination delivered by U.S. Mail is considered timely delivered if postmarked by April 1, 2011. The nomination should include your name, the position you are seeking, and the Bar District in which you reside. I would encourage each of you to consider running for a position within the YLS. By seeking a leadership position, you can become actively involved in the ongoing work of the Section, as well as make decisions about our future endeavors. I feel it is healthy for every organization to have qualified, interested, individuals vying for leadership positions
because it ensures that the organization maintains focus, is exposed to a diversity of ideas, and is accountable to its membership. In closing, I want you to know that the YLS has a place for you whether that be a candidate for a leadership position, serving on a committee, or just attending events sponsored by the Section. If you have questions about the upcoming elections or are interested in becoming involved within the Section in any other capacity, please feel free to contact me and I will assist in any way that I can. n
Nomination entry forms are available for this year’s Young Lawyers Section Frank C. Elcan II Award This award is given in recognition of a lawyer who has demonstrated exceptional leadership skills in and made outstanding contributions to the Young Lawyers Section of the Arkansas Bar Association. This award will be presented at the Annual Meeting in Hot Springs in June. Deadline for submission of nomination forms: Tuesday, March 15, 2011. Nominations may be submitted by any Association member. To request an entry form, please contact Lorrie Payne at the Arkansas Bar Association at (501) 375-4606 or (800) 609-5668 or email email@example.com.
Arkansas Bar Association 113 th Annual Meeting JOINT MEETING WITH THE ARKANSAS JUDICIAL COUNCIL
JUNE 8-11, 2011 HOT SPRINGS ARLINGTON HOTEL & HOT SPRINGS CONVENTION CENTER
ALL NEW Sports Law Track featuring Mike Leach and Walt Coleman ABOTA Masters in Trial Mock Trial Program Barry Richards of Greenberg Traurig presents on the Erosion of Civil Liberties Health Law track with topics about the impact of the new federal legislation
SIDELINES featuring: Lounge & Learn, Ladies VIP Halftime Show and Scotch & Cigars
YLS RED ZONE PARTY FRIDAY NIGHT
Touchdown Arkansas Bar!
& LAW PRACTICE MANAGEMENT This article, originally published in the Oklahoma Bar Journal, Vol. 81, No. 29 (Nov. 6, 2010) is reprinted with permission from the Oklahoma Bar Association.
The Lawyer’s Guide to using and Citing Wikipedia
By Lee F. Peoples
wiki is a webpage created through collaborative effort. The most famous wiki is Wikipedia, an online encyclopedia that contains over 15 million articles in 270 languages. Anyone can create or edit Wikipedia content at any time. Wikipedia makes no guarantees about the validity of the information it contains and warns users that articles may contain false or debatable information. Wikipedia articles have been purposely falsified by pranksters, and as a result, changes to articles about living people must be verified by Wikipedia editors before going live. The citation of Wikipedia in papers and exams has been formally banned at several colleges, and Wikipedia’s founder has publicly warned college students not to cite it in their papers. Surprisingly Wikipedia has been cited in over 400 judicial opinions.1 Many of these references are harmless citations used for background information or dicta. But in some instances courts have taken judicial notice of Wikipedia content, decided important motions on the basis of Wikipedia entries and relied on Wikipedia to support judicial reasoning.
footnoted with references to reliable sources of information. A few moments spent reviewing the footnotes may lead you to a relevant source. For example, in a recent opinion, the 7th Circuit referenced the Wikipedia entry on shell corporations and noted that the Wikipedia entry was quoting from Barron’s Finance & Investment Handbook.2
A wiki created or edited by a noted expert in a particular area of law could potentially be superior to a law review article or book by the same expert. The wiki could be updated instantly and reflect the most recent changes in the law. In contrast, it would take the expert months or years to publish a treatise or law review article discussing the latest developments in the law. Examples of these types of wikis include:
In spite of its deficiencies, Wikipedia can be a useful starting point for research. Wikipedia can be used for gathering search terms before beginning research in an area that you are unfamiliar with. A few minutes spent mining a Wikipedia entry for relevant search terms can save considerable time and produce more relevant search results when using LexisNexis or Westlaw. Some Wikipedia entries are carefully Vol. 81 — No. 29 — 11/6/2010
YLS In brief
The Oklahoma Bar Journal
G N I T S TA the ROCK BLSA is hosting its seco nd food tasting event.
Tickets are $5 for students and $10 for gene ral admission. All proceeds from the ev ent go toward our scholarship fu nd and annual scholarship banque t.
s Participating Vendor Brewster's café Restaurant Hacienda Mexican nese Big on Tokyo Japa Restaurant Lindsey's Barbeque s All American wing Iriana’s Pizza Lu Lav And More...
A sampling of some of Little Rock’s best local food. See a BLSA member for tickets or email: firstname.lastname@example.org
Location: UALR Bowen School of Law Dean’s Gallery Time: 5p—7p
Date: Monday Feb 21, 2011 15
• Workers’ Compensation Law, www. workerscompensationok.com/, is a useful wiki that contains an “unofficial summary and analysis of issues that are frequently addressed by the Oklahoma Workers’ Compensation Court.”3 The wiki is authored by Oklahoma Workers’ Compensation Court Judge Tom Leonard and is updated frequently. • ScotusWiki, www.scotuswiki.com, focuses on the U.S. Supreme Court. It was launched by the highly-respected Supreme Court specialist Tom goldstein who is famous for his SCOTUSblog. Only “regular SCOTUSblog contributors, top law students, and leading experts in various legal fields” are permitted to edit the content of ScotusWiki.4 • Cornell Law School’s Wex, http://topics. law.cornell.edu/wex, is a wiki about law that only allows “qualified experts” to write or edit content. Boasting over 5,000 entries, Wex is currently the most robust wiki about law written by experts. • Many lawyers and legal academics who share their expertise on the Internet do so using a blog instead of a wiki. Two useful resources for locating blogs about law are Justia’s BlawgSearch, http://blawgsearch.justia.com/blogs, and Blawg.org. Several other wikis are worth mentioning for their efforts to tap into the collaborative nature of the wiki platform. • The 7th Circuit Court of Appeals launched a wiki in 2007, http://www.ca7.uscourts. gov/wiki/index.php?title=Main_Page. The main feature of the wiki is the Practitioners Handbook which may be edited by attorneys who complete an online registration form. Chief Judge Frank H. Easterbrook explained the decision to open the handbook up for revision “As a group, the attorneys practicing before our court know more about appellate practice than any single person. With our wiki, we’re drawing on that wisdom.”5 • Spindle Law, www.spindlelaw.com, was recently launched by several Columbia law graduates as a wiki-style treatise that “assembles rules of law together with the authorities to back up those rules. Structurally, it organizes the law into a tree, with each branch leading to ever-narrowing 2438
YLS In brief
branches.”6 Registered users can create or edit content on Spindle Law and editors review the submissions to ensure quality. Spindle Law is still very much a work in progress and currently only contains content on evidence, the Clean Air Act and securities law. • Judgepedia, www.judgepedia.org/index. php/Main_Page, is a wiki about judges that any registered user can contribute to. It has nearly 100,000 entries on federal and state court judges. Judgepedia has the potential to be a valuable source of information about the judiciary. Unfortunately, many of the entries about Oklahoma judges have yet to be developed. WHen CItInG a WIKI maY Be aPPrOPrIate The agility of wikis gives them an advantage over print resources in certain situations. Wikipedia entries have been cited in judicial opinions to define new slang terms, popular culture references, and to explain jargon, lingo and technology terms.7 Many of these terms are so new that they are not yet included in more traditional reference sources like encyclopedias or dictionaries. For example, Judge Alex Kozinski of the 9th Circuit Court of Appeals recently turned to Wikipedia to define a term related to the Internet in a dissenting opinion. Judge Kozinski criticized the majority opinion for defining the term using a print dictionary published in 1963, more than 20 years before the Internet came into existence.8 Similarly, the Western district Court of Oklahoma9 cited a wiki to define the technology term “data-carving,” and the 10th Circuit Court of Appeals10 cited Wikipedia for a list of computer file formats. The collaborative process through which Wikipedia entries are created makes them particularly useful in certain situations. Courts interpreting insurance contracts have turned to Wikipedia for evidence of the common usage or ordinary and plain meaning of a contract term. For example, a Wikipedia entry has been relied on to define the terms “recreational vehicle”11 and “car accident”12 in the context of insurance contracts. It is conceivable that in the future courts may turn to Wikipedia to determine public perception in trademark infringement or dilution cases or to establish community standards in the context of prosecutions for obscene material.13
The Oklahoma Bar Journal
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eValuatInG a WIKIPeDIa entrY Wikipedia entries should be evaluated to determine if they meet basic standards of quality before they are cited. Wikipedia editors include editorial notes in Wikipedia entries to indicate the quality of the entry. Entries bearing a small gold star in the upper right hand corner are “featured articles”14 and have been recognized for being accurate, neutral and complete. At the other end of the spectrum are “stubs,” articles containing only a few sentences. Additional editorial notes appearing at the top of some articles include “missing footnotes,” “requires authentication by an expert,” or “requires cleanup.” One-hundred and fifteen of the Wikipedia entries cited in the opinions I examined included editorial notes alerting the reader to something negative in the Wikipedia entry, but none of the 401 judicial opinions I examined mentioned these rankings when citing a Wikipedia entry. Editorial notes can be helpful in evaluating a Wikipedia entry. But the analysis of the quality of an entry should not rest entirely on a note made by a volunteer Wikipedia editor. Any Wikipedia entry cited in a brief or judicial opinion should be evaluated for authority, completeness, accuracy and bias.15 The authority of a Wikipedia entry is difficult to determine. Wikipedia entries are the products of collaboration, and no one individual author can be identified. The only clue to the author’s identity comes from the “View History” tab at the top of every Wikipedia entry. It reveals the user name or IP address of every user who edited the article. Completeness, accuracy and bias can be evaluated by watching for editorial notes appearing in the Wikipedia entry and by comparing the Wikipedia entry to a reliable source like a treatise or scholarly article. CItInG WIKIPeDIa entrIes The purpose of legal citation is “to allow the reader to efficiently locate the cited source.”16 The constantly changing nature of Wikipedia entries makes them challenging sources to cite. Every Wikipedia entry cited in the 401 cases that I examined had changed since the date the court cited it. Some of the changes were minor and improved the entry. In other cases, the entry changed significantly and no longer contained the information it was cited for in the judicial opinion.17
for a trivial point or collateral matter. But if the Wikipedia entry was cited to support an assertion made in a judicial opinion, or was otherwise relied upon by the court, then the inability to examine the entry as the judge saw it has more severe consequences. Future researchers may not be able to completely comprehend the point the judge was making if they cannot retrieve the exact Wikipedia entry as the judge viewed it. This may ultimately lead to uncertainty and instability in the law.18 Specific information must be included in the citation to allow the reader to view the Wikipedia entry as it appeared at the time it was cited. The rules on citing Internet sources in the recently released 19th edition of The Bluebook are a vast improvement over the previous edition’s rules. Rule 18.2.2 covers direct citations to Internet sources. Under this rule, Wikipedia entries should be cited as follows: Wear and Tear, Wikipedia (Mar. 26, 2009, 2:15 PM), http://en.wikipedia.org/w/ i n d e x . p h p ? t i t l e = We a r _ a n d _ t e a r & oldid=237134914. Rule 18.2.2 requires a citation to include the title of the page viewed, the date and time it was viewed and a permanent link to the page viewed. Wikipedia provides a permanent link under the toolbox section on the left-hand side of each entry. This link will take future researchers to the entry exactly as it looked when it was cited. The Judicial Conference of the United States recently released guidelines on the citation of Internet sources that provide additional safeguards against disappearing Internet sources.19 The guidelines urge judges to capture Internet sources when citing a source that is “fundamental to the reasoning of the opinion and refers to a legal authority or precedent that cannot be obtained in any other format”20 or if there is reason to expect that the source may “be removed from the website or altered.”21 The guidelines are a positive development but are not mandatory and do not apply to state courts. In my study, 26 percent of the citations to Wikipedia were found in state court opinions.22 The National Center for State Courts should follow the lead of the Judicial Conference in this area and develop similar guidelines for state courts.
Changes in Wikipedia entries may be of little concern to researchers if the initial citation was Vol. 81 — No. 29 — 11/6/2010
The Oklahoma Bar Journal
WHen nOt tO CIte WIKIPeDIa
The 8th Circuit’s opinion contained several paragraphs critiquing the reliability of Wikipedia.
Wikipedia should not be cited as the only source to support reasoning or analysis. One of the most egregious examples comes from the 7th Circuit Court of Appeals in the case of Rickher v. Home Depot23 where the court relied on the Wikipedia definition of “wear and tear” to refute a claim central to the appellant’s case that wear and tear encompassed damage that would occur during the proper use of a rental tool. Blogger and law professor Eugene Volokh was troubled by the use of Wikipedia as a “substantial authority”24 and cautioned that because the accuracy of Wikipedia had not been demonstrated, courts should rely on more traditional sources when deciding important and controversial matters.
Wikipedia has been used in disturbing ways in immigration cases. In Badasa v. Mukasey25 the 8th Circuit wisely remanded a Board of Immigration Appeals decision denying an asylum request because it was based solely on a definition taken from Wikipedia. The 8th Circuit’s opinion contained several paragraphs critiquing the reliability of Wikipedia. One blogger noted that the use of Wikipedia in this case “would almost be humorous if it weren’t for the dire consequences of rejecting a valid asylum application and returning a refugee to a country in which they face torture and possibly death.”26 In Tandia v. Gonzales,27 the 10th Circuit Court of Appeals cited a Wikipedia entry to support an attack on the credibility of an asylum seeker. According to the asylum seeker, the population of his hometown Kaedi was 800. The court found that this claim undermined the asylum seeker’s credibility. This finding was supported by a quotation from the Wikipedia entry on Kaedi which states that “it is presently a city of over 60,000 people.”28 A more reliable source of population information should have been used when questioning the credibility of the asylum seeker. The U.S. department of State background notes contain detailed information about all countries in the world.29 The background note on the city of Kaedi located in the African country of Mauritania puts the city’s population at only 34,000.30 The court should have turned to a more reliable source of infor2440
YLS In brief
Courts should not take judicial notice of Wikipedia content because it does not meet the evidentiary requirements for judicial notice. Courts may take judicial notice of a fact that is “not subject to reasonable dispute in that it is either 1) generally known within the territorial jurisdiction of the trial court or 2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”31 Wikipedia entries are often the subjects of dispute, and Wikipedia has an elaborate process in place to settle disputes over entries. Additionally, Wikipedia is a source whose accuracy can be reasonably questioned. It can be edited at any time by anonymous editors. Wikipedia entries are often marked with editorial notes including “missing footnotes,” “doesn’t cite any sources,” “requires authentication by an expert” and “neutrality disputed.”32 In the majority of cases,33 courts have wisely refused to take judicial notice of Wikipedia content. However, courts have taken judicial notice of Wikipedia content in a small handful of cases.34 No Oklahoma or 10th Circuit opinion has spoken to this issue yet.
Wikipedia entries should not be accepted to demonstrate the presence or absence of a material fact in the context of a motion for summary judgment. Anyone can edit a Wikipedia entry at any time to support their version of the facts at issue in a case. Courts should be wary of any such “opportunistic editing”35 of Wikipedia and should not trust it in the context of a motion for summary judgment. In several cases courts have relied on a Wikipedia entry along with other sources to grant or deny a motion for summary judgment.36 But so far courts have wisely rejected attempts to show the presence or absence of a material fact based only on a Wikipedia entry.37 No Oklahoma or 10th Circuit case has addressed the use of Wikipedia in the context of a motion for summary judgment. COnClusIOn In James Surowiecki’s book, The Wisdom of Crowds, he argues that “under the right circumstances, groups are remarkably intelligent, and are often smarter than the smartest people in
The Oklahoma Bar Journal
mation for this important fact instead of unreliable information obtained from Wikipedia.
Vol. 81 — No. 29 — 11/6/2010
them.”38 Oklahoma judges and lawyers should be cautious when relying on the wisdom of the crowds who create and edit Wikipedia content. Wikipedia has only been cited in a handful of judicial decisions in Oklahoma but citations will likely increase in the future.39 Wikipedia’s rapidly updated crowd-sourced content makes it particularly useful in limited situations. But the impermanent nature and questionable quality of its content should give lawyers and judges pause before citing Wikipedia. Author’s Note: I would like to thank Emma Rolls for her careful editing of this article. 1. Lee F. Peoples, “The Citation of Wikipedia in Judicial Opinions,” 12 Yale J.l. & Tech. 1, 6 (2009-10) (reporting the results of my exhaustive survey of every judicial opinion citing a Wikipedia entry). 2. Nautilus Ins. Co. v. Reuter, 537 F.3d 733, 737 (7th Cir. 2008). 3. “About This Site,” Workers’ Compensation Law (Sept. 29, 2010, 10:37 a.m.), www.workerscompensationok.com/about-this-site. 4. About, SCOTUSWIKI (July 16, 2010, 9:35 a.m.), www.scotuswiki. com/index.php?title=ScotusWiki:About. 5. “7th Circuit’s Wiki Lets Practitioners Contribute,” Vol. 39 No. 6 The Third Branch 2 (June 2007). 6. Robert J. Ambrogi, “Crowdsourcing the Law: New Sites Rely on the Community to gather and Refine Expertise,” Law Tech. News, Aug. 1, 2010, www.law.com/jsp/lawtechnologynews/PubArticleLTN. jsp?id=1202463905267. 7. See People v. Rodriguez, 860 N.y.S.2d 859 (Crim. Ct. 2008) turning to Wikipedia for a definition of how MySpace works; People v. Hawlish, No. g036077, 2007 WL 915149, at *6 n.5 (Cal. Ct. App. March 27, 2007) using Wikipedia to define slang drug terms; and Healthcare Advocates Inc. v. Harding, Earley, Follmer & Frailey, 497 F. Supp. 2d 627, 630 (E.d. Pa. 2007) referring to Wikipedia to define a technology related term. 8. Fair Housing Council v. Roommates.com, LLC, 521 F.3d 1157, 116869 (9th Cir. 2008). 9. US v. Haymond, 2009 WL 3029592 (N.d. Okla. 2009). 10. US v. Welch, 291 Fed. Appx. 193, 203-04 (10th Cir. 2008). 11. Fergison v. Stonebridge Life Ins. Co., No. 271488, 2007 WL 286793, at *3 (Mich. Ct. App. Feb. 1, 2007). 12. Laasmar v. Phelps Dodge Corp. Life, Accidental Death & Dismemberment and Dependent Life Ins. Plan, No. 06-cv-00013-MSK-MJW, 2007 WL 1613255, at *4 n.5 (d. Colo. June 1, 2007). 13. Peoples, supra note 1, at 32-33. 14. For a thorough explanation of editorial notes included in Wikipedia articles see About, Wikipedia (July 16, 2010, 9:20 a.m.), www. en.wikipedia.org/w/index.php?title=Wikipedia:About&oldid= 329127169. 15. diane Murley, “In defense of Wikipedia,” 100 Law Libr. J. 593, 599 (2008). 16. “The Bluebook: A Uniform System of Citation 1” (Columbia Law Review Ass’n et al. eds., 19th ed. 2010). 17. See the specific examples from the Helen of Troy and Murdick cases discussed in Peoples, supra note 1, at 39-40. 18. This paragraph originally appeared in my article “The Citation of Wikipedia in Judicial Opinions,” supra note 1, at 39. 19. “Judicial Conference of the U.S., guidelines on Citing to, Capturing, and Maintaining Internet Resources in Judicial Opinions/ Using Hyperlinks in Judicial Opinions” (2009) [hereinafter guidelines], available at www.inbar.org/LinkClick.aspx?fileticket=hptdW9dIhFy% 3d&tabid=356. For more information on disappearing Internet sources see Mary Rumsey, “Runaway Train: Problems of Permanence, Acces-
sibility, and Stability in the Use of Web Sources in Law Review Citations,” 94 Law Libr. J. 27, 30 (2002). 20. guidelines, supra note 19, at 2. 21. Id. at 3. 22. 103 out of 401 cases citing Wikipedia. 23. 535 F.3d 661 (7th Cir. 2008). 24. Eugene Volokh, “Questionable Use of Wikipedia by the Seventh Circuit?,” Volokh Conspiracy (July 30, 2008, 1:02 p.m.), http:// volokh.com/2008/07/30/questionable-use-of-wikipedia-by-the- seventh-circuit. 25. 540 F.3d 909 (8th Cir. 2008). 26. Jaya Ramji-Nogales, “Citing Wikipedia—Harmless Error?,” Concurring Opinions (Sept. 3, 2008, 9:26 a.m.), www.concurring opinions.com/archives/2008/09/citing_wikipedi.html. 27. 236 Fed. Appx. 455, 457 (10th Cir. 2007). 28. Id. 29. “Background Notes,” www.state.gov/r/pa/ei/bgn/index.htm (last visited July 16, 2010). 30. Mauritania, “Background Notes” (July 16, 2010, 9:20 a.m.), www.state.gov/r/pa/ei/bgn/5467.htm#geo. 31. Fed. R. Evid. 201(b). 32. About, Wikipedia, supra note 14. 33. Steele v. McMahon, No. CIV S-05-1874 dAd P, 2007 WL 2758026 (E.d. Cal. Sept. 21, 2007), Flores v. State, No. 14-06-00813-CR, 2008 WL 4683960 (Tex. Ct. App. Oct. 23, 2008), and Capcom Co. v. MKR Group Inc., No. C 08-0904 RS, 2008 WL 4661479, at *4 (N.d. Cal. Oct. 20, 2008). 34. Helen of Troy L.P. v. Zotos Corp., 235 F.R.d. 634, 639 (W.d. Tex. 2006) and Aquila v. Nationwide Mutual Insurance Co., No. 07-2696, 2008 WL 4899359 (E.d. Pa. Nov. 13, 2008). 35. Noam Cohen, “Courts Turn to Wikipedia, but Selectively,” N.Y. Times, Jan. 29, 2007. 36. C & R Forestry Inc. v. Consolidated Human Resource AZ Inc., No. CV 05-381-N-EJL, 2008 WL 4000161 (d. Idaho Aug. 28, 2008), Randy Disselkoen Properties LLC v. Charter Township of Cascade, No. 1:06-cv-141, 2008 WL 114775 (W.d. Mich. Jan. 9, 2008), General Conference Corp. of Seventh-Day Adventists v. McGill, 624 F. Supp. 2d 883 (W.d. Tenn. 2008), and Murdick v. Catalina Marketing Corp., 496 F.Supp.2d 1337, 1350 -51 (M.d. Fla. 2007). 37. Davage v. City of Eugene, No. 04-6321-HO, 2007 WL 2007979 (d. Or. July 6, 2007). 38. James Surowiecki, The Wisdom of Crowds: “Why the Many Are Smarter Than the Few and How Collective Wisdom Shapes Business, Economies, Societies, and Nations,” at xiii (2004); see also Cass R. Sunstein, Infotopia: “How Many Minds Produce Knowledge” (2006). 39. A search of Westlaw’s Oklahoma State and Federal Civil Trial Court Filings (OK-FILINgS-ALL) database revealed 10 filings citing Wikipedia or another wiki.
AbOuT THE AuTHOR
Lee F. Peoples is director of the Law Library and associate professor of law library science at the Oklahoma City University School of Law. He received his B.A., M.L.I.S. and J.D. degrees from the University of Oklahoma. His research and scholarship focuses on comparative law and the impact of technology on legal research, the judiciary and the law.
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YLS In brief
YLS Inbrief Winter 2011