Are appellate court briefs good research tools? Legal research experts differ on this issue. Some researchers see briefs as a great starting point for research or as a means of not “reinventing the wheel” while others urge caution, insisting that there are so many poorly- written and researched briefs that it is dangerous to use them at all. The answer may lie somewhere in the middle: use briefs with caution but use them if the issues are relevant and the research and writing is good. This requires evaluation on the part of the user, requiring time which the user may not have in abundance. Nevertheless, copying a brief wholesale is risky. Not only does one risk duplicating a poorly written and reasoned brief, but an accusation of plagiarism might rear its ugly head. “Wait a minute!” you say. “Aren’t briefs filed pursuant to a case public record and therefore fair game?” Excellent question. While this is the mainstream view, there are many lawyers who would not appreciate someone using their work product without their permission, and this is a legal issue that has not been addressed either by statute or case law. Who wants to be the first one to get sued for infringing the copyright on someone’s appellate brief? That’s one way (maybe not the best however) to get into the books. For more info on this topic read:
Whiteman, Michael. “Appellate Court Briefs On the Web: Electronic Dynamos or Legal Quagmire.” 97 Law Libr. J. 467 (2005).
Issacs, Davida H. “The Highest Form of Flattery? Application of the Fair Use Defense Against Copyright Claims for Unauthorized Appropriation of Litigation Documents.” 71 Missouri L. Rev. 392 (2006).
At least one legal research vendor, Thomson West, believes that briefs are a great resource, so much so that Thomson now has available on Westlaw the appellate briefs from 39 states, plus federal court briefs from all of the circuit courts of appeals and the United States Supreme Court. LexisNexis also publishes briefs electronically, and many state and federal courts make briefs available on their web sites, generally at no cost. There are also commercial web sites, aside from Westlaw and Lexis, that make appellate briefs available for a price. For a very complete list of sources for appellate briefs in general read: Free and Fee Based Appellate Court Briefs Online and Briefs and Oral Arguments Research Guide.
In Alabama, appellate briefs are not available electronically at this time. The source for recently-filed appellate briefs is generally the Clerk’s Offices of the Supreme Court and the two Courts of Appeals. For older briefs, the best source is the Supreme Court Library which has Alabama Supreme Court briefs in hard copy beginning with the 1965-66 term of the Supreme Court and ending with the 1995 term. This is a tremendously rich resource, both legally and historically, that has gone relatively untapped. These briefs have not been digitized and there are no immediate plans to do so. This is an issue on which I would be greatly interested in hearing the comments of fellow researchers,as well as on the issue of putting the appellate court briefs on Westlaw and/or Lexis.
Alabama Supreme Court and State Law Library 