LAWTECH GURU BLOG by Jeff Beard

Judicial Googling Revisited

The ABA Journal has published a good article, "In Google We Trust?", in the October 2004 issue. Several judges along with fellow bloggers Denise Howell and Tom Mighell provide their thoughts on how much judges and lawyers should rely upon Internet search results. It's a thought-provoking read.

This issue isn't new, as CNet News reported this issue back in May, and I weighed in with my own thoughts and observations at the time.

One thing's for certain: This issue isn't going away. Quite the converse, actually, as our overall tech and web savvy increases. As I said back in May:

For one, no search engine can index the entire web, especially since a chunk of it is still hidden in proprietary databases served up in dynamic just-in-time "active server page" (.asp) or similar web pages. Thus each search engine takes its own unique "photograph" or map of the web, akin to the example of ten blind men and the elephant. Each one cannot see the whole, so they report upon what they can sense of it.

[...] Probably the largest attraction among the judiciary is that search engines provide what appears to be a "common sense approach" to finding information. I've certainly seen opposing counsel come up with some novel spins on underlying facts, and it's definitely handy to have an independent means to confirm or debunk them. As a heavy user of search engines myself, I certainly don't wish to condemn them. But I have to admit that this is an area in our judicial system that is unclear at best, and subject to abuse at worst -- to use such results as a basis to justify a decision. The decision itself could be sound, but it's the means to the end that concerns me most. As a progressive and savvy technology user, I often seek ways to find new and compelling technology uses in the practice of law. However, the legal conservative in me would like to see that the more reasoned adversarial evidentiary process be upheld and augmented appropriately.

This is going to be a challenging issue for the courts to address. The more tech-savvy our judges become, the more they'll naturally want to use technology in carrying out their duties -- and they should. When used appropriately, it can increase efficiency and accuracy. The big question is under which circumstances is search engine use and reliance thereon justified?