This week the Fourth Circuit joined a growing trend in acknowledging that its judges can, and sometimes do, look outside of the joint appendix/appellate record and Westlaw/Lexis for support for their appellate opinions. The Court adopted Internal Operating Procedure 36.4, which states
Internet resources cited in the Court’s opinions that can be saved in PDF format will be preserved by the opinion’s author at the time of viewing and placed on the Court’s docket as opinion attachments when the opinion is filed.
Of course, this information comes as no surprise to anyone. In our modern, online world (and with the decline of traditional law libraries), using the Internet to research information–and prepare appellate briefs and opinions–is a behind-the-scenes phenomenon that has been occurring for some time. What’s interesting, however, is that the Fourth Circuit is not only acknowledging what occurs behind the scenes, but is providing a formal mechanism for the Court to cite to, and save for future reference, non-traditional resources.
Just because the Court is more freely consulting Internet sources does not mean advocates will be given the same leeway, however. Indeed, a certain 2011 North Carolina Court of Appeals’ opinion comes to mind, which firmly rejected Wikipedia as a reliable resource to be cited in appellate briefs.
My sense is that appellate attorneys’ use of most internet resources will remained “closeted” for the foreseeable future, with most waiting to see how far the black robes are willing to go in their opinions first! What are your thoughts on this? Let us know in the comments below! (Frank Queen, I’m talking to you!)