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Unreported but not unimportant

Nearly 80 per cent of higher court cases have gone unreported. How many potentially important precedents were ignored, wonders Masoud Gerami

15 September 2017

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Weighty bound volumes containing the law reports adorn many courtroom walls, symbolically underpinning the precedents of the English common law system which they faithfully record. As every lawyer knows, precedents matter.

Although their usage has been overtaken by their online counterparts, the law reports remain pivotal, providing lawyers, law students, and academics with summaries of key judgments, stretching back over 600 years.

Since the 1860s, the Law Reports for England and Wales have been published to a very high standard. This much is well-known. Somewhat less well-known is that nearly 80 per cent of higher court cases have gone unreported, even at the appellate level. Since 1999, the figures are as follows:

In the pre-digital era, the volume of cases that could be reported was dictated by printing limitations. That problem has gone, but others remain. Since 2012, 44 per cent of all superior court cases have gone unreported, including 304 in the Supreme Court and Privy Council. The production cost continues to weigh heavily. Even in the digital age, every large domestic law report publisher still produces corresponding hard copy.

Historically, different issues arose. Judgement, so critical for a skilled law reporter, is particularly important in selecting cases: either because they set a precedent, or have important distinct features.

Without knowing the applied criteria, we cannot know how the selection process once worked, or whether it was always valid. Among unreported cases, was nothing significant ever missed, or excluded because it did not suit contemporary mores?

Inevitably, subjective judgement was sometimes flawed. Attitudes of the 1870s or 1950s are far removed from those we share today. In turn, the past attitudes of report compilers shared the values of their time: they may not have taken much account of dissenting judgments, which might now be seen as attempts to move the law in a more progressive direction.

How many potentially important precedents were ignored? Does an online search deliver every relevant authority to find out? More than just hypothetical questions, these have been central to the work done by Justis to help make some answers available.

That is why we host a comprehensive database of judgments from the superior courts. These provide access to forgotten cases of the past – the silent majority – so that today’s lawyers and legal scholars can decide what really matters, and what does not.

To ensure that our database is the largest available, we searched court archives across the country, digitising judgments that are unavailable elsewhere, including previously unreported cases alongside those already reported. The Justis online archive provides more than three times the number of judgments since 1950 than any other publisher.

Justis has done the same for other common law jurisdictions: Ireland, Canada, Australia, and the Caribbean. More than 700,000 unreported cases across these jurisdictions are now online with plans to add India and South Africa. Cases are identified through categorisation, and examining case relationships across jurisdictions.

So how can lawyers take advantage? Services such as BAILII hold the data, although searching for specific arguments is difficult. To make better use of it, legal research must innovate, providing tools for practitioners. Once these are in widespread use, lawyers without access could be disadvantaged by an inferior data set to support their arguments. Having easy access will be of paramount importance, as will innovation among database providers.

To address individual needs, a new suite of Justis tools makes the best use of technology to make accessing the archive quick and easy. Intelligent software is key. Natural language analysis and data-mining identify and extract legal concepts and arguments. Algorithms isolate critical passages based on how they have been subsequently cited: which sentences and which paragraphs. This dynamism allows users to identify how they may have evolved over time with different citations.

Likewise, every judgment is consistently classified using a uniform legal taxonomy, allowing identification of related authorities or supporting arguments. The taxonomy covers 1.5 million entries: the largest such taxonomy ever created.

Extracting information from a wealth of previously unreported legal judgments adds real value in identifying every authority, conducting comparative research, exploring precedent maps, discovering related cases, and distinguishing case treatments. By making more cases available, the Justis research platform also makes them accessible.

How you use them is entirely a matter for you.

Masoud Gerami is managing director of Justis

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Tribunals & Courts Courts & Judiciary