Some people eat, sleep and chew gum, I do genealogy and write...

Tuesday, December 6, 2011

Have you searched the National Reporter System?

I guess I wasn't all that clear in one of my last posts, there is a set of books called the National Reporter System published by WestLaw. The National Reporter System is a set of reporters that divides the 50 states and the District of Columbia into seven regions: Atlantic, North Eastern, North Western, Pacific, South Eastern, South Western, and Southern. The National Reporter System covers the appellate courts of all the states and the District of Columbia. The federal reporters published by West are also part of the National Reporter System. This set of books has thousands of volumes of case reports.

Courts in the U.S. are largely divided into two categories, courts of record and courts not of record. The difference has nothing to do with the case file but has to do with the actions of the judges. In cases not of record, the judge can issue a judgement such as guilty or not guilty, or in favor of the plaintiff or in favor of the defendant and say nothing more. In courts of record the judges usually write their opinions of the case. Courts of record are usually known as appellate courts.  These opinions are collected and published and become part of the common law of the U.S. These are the opinions published in the National Reporter System.

OK, now the explanation of the difference between the case report and the case file. As a law case proceeds through the court, from the filing of the first document to the end of the case, the court maintains a "case file." The file can contain every single document filed by any of the parties and by the court (the judge) in the case. Practically, the files contain most of the more important documents in the case but may have had only certain documents preserved. For example, when you present documentary or other evidence in a trial as exhibits, the court may only keep those exhibits for a period of time and then either return them to the parties or destroy them. The amount of information maintained in a paper file will vary from court to court. Over time, in a busy court, these records can become voluminous and are sometimes stored in a central repository or warehouse. Lately, courts have been digitizing these records and, under some circumstances, destroying the originals. These records are maintain where ever the court may have decided to store them, basements, storage rooms, under desks, anywhere. Most of the courts keep an index of the case files, but the index may only list the parties and not all the witnesses.

Now, if a case is appealed to a higher court, the file of the case is sent to the higher court for review. Once the case is reviewed, the reviewing court writes it judgment or opinion and returns the case file to the lower court. Those court opinions, from appellate courts all the way up to the U.S. Supreme Court, are collected in the National Reporter System. The court opinion may contain a statement of the facts or it may not. The opinion will give the case number of the lower court case and the name of the judge that decided the case. It will usually identify the attorneys who handled the case and sometimes other pertinent information. It may, on occasion, reproduce some of the evidence of the case below. 

What is meant by a lower court and a higher court is that higher courts have jurisdiction over lower courts. Under some circumstances, a higher court judge can order a lower court judge to do something in a case. The rulings in the higher courts about a case are binding on the judge in a lower court. If a lower court judgment is appealed, then the appeals court may do nothing or refuse to take the case, or it may affirmed or agree with the lower court or reverse the case or even send the case back to the lower court to be retried. 

As genealogists, we should all be familiar with the National Reporter System because there is a huge amount of information contained in these thousands of volumes. Some of the cases are available online for free, but most are in the WestLaw databases and are only available by subscription and it is very expensive. You might be able to get a lawyer to make a search for you, but there might be a charge and it can be very expensive, like hundreds of dollars. Another hint, none of the actual case opinions are subject to copyright so even though the cases are in the National Reporter System, the words of the judges are not copyrighted. The format and all of the extra WestLaw case notes certainly are copyrighted however.

This leaves the case files in the courts. Some of these are now online, but it depends on how much of the file was digitized. These are the files that will really have valuable information in detail that will be helpful to genealogists.

Be patient, I will keep explaining how this all works. It took me years to understand all this, not just three years in school.


  1. Your definition of a court of record is incorrect.

  2. No, your understanding of what I am saying is incomplete. A court that keeps a record of how they decide a case is a court of record. In the U.S. the appeals courts are the first level of a court of record because they are required to document their decisions. The court decision then become precedent for future decisions. General trial courts make no record of their decisions and their decisions are not binding on any other court, i.e. they do not establish a precedent.

  3. Mr. Tanner, I doubt that you intended to say the first part of this sentence: "General trial courts make no record of their decisions and their decisions are not binding on any other court, i.e. they do not establish a precedent."

    Trial courts do indeed make records of their decisions, else there would be no grounds for sentencing, for appeal, for writs of execution or for any other means of enforcement of judgments, etc.

    I am sure you meant that trial courts do not decide matters of law (say, constitutionality of legislation) and do not issue ~opinions~ in that respect. But they do indeed make records, or have their clerks do so. Else I would not have found an 8-page record detailing a complaint plus a similar detail of the proceeding and order of sale of a teeny parcel of land and division of the proceeds among 4 generations of descendants of the original owner, the beneficiaries all named and relationships given in each record. Even if an 1808 Minute Book only briefly stated that a cause was dismissed by agreement of the parties (one or both ordered to pay costs), it is surely a record. Decisions and judgments -- but not Opinions!

    Here there is a difference between a record made by a Court and the record made by a (more narrowly defined) Court Of Record.

    I am enjoying your series very much. Thank you!

  4. Please see my rather long and involved comment in a subsequent post