The Internet is a temptation which many courts have been unable to resist. Over the past twenty years, judges at trial and appellate levels have increasingly used Internet research in crafting their judicial opinions. Judge Richard Posner of the Seventh Circuit is a huge proponent of this proposition, and in August 2015, he authored an opinion which took this independent Internet research to a new level. In Rowe v. Gibson, Judge Posner's opinion reversed summary judgment for a pro se litigant partly based on independent Internet research performed by the court. His justification for using this Internet research was due to the plaintiff's lack of resources as a pro se litigant. Rowe, a prisoner, was not knowledgeable enough to build a proper record by himself, and he did not have the resources to hire his own attorney. As such, he was unable to avoid summary judgment. Judge Posner argued that a court's careful use of Internet research would assist pro se litigants whose cases are in danger of being dismissed due to procedural failure.
Judge Posner is correct that pro se litigants are at a severe disadvantage with regard to procedure in a courtroom. He is also correct that a court must be free to use information from the Internet in litigation. This Article proposes a way to allow judges to use Internet research as a form of judicial notice, as well as to assist pro se and underrepresented litigants have their day in court. First, courts must develop a standardized way to consider pro se litigants' pleadings. Many courts construe pro se litigants' pleadings liberally, but have little regulation for this proposition. By using a factor-balancing approach, a court may determine which litigants are the most deserving of lowered pleading standards. These litigants will also potentially benefit from judicial Internet research. Next, a court may consider taking judicial notice of facts on the Internet. These facts and websites consulted must meet the standards of the Federal Rules of Evidence for accuracy and reliability. If a pro se litigant is flagged as vulnerable based on the first part of the test, a court has the ability to take judicial notice of certain facts in early stages of the proceedings.
This test tracks with the Supreme Court's desire to not allow pro se litigants to become an underrepresented class in court. In Rowe, Judge Posner's sentiment was admirable, but still not an entirely permissible use of judicial Internet research. In order for a court to be able to assist pro se litigants to create opportunities for their cases to go to trial, it must use Internet research according to specific rules. Only then can pro se litigants get a fair chance in court.
M. C. Martin,
"Googling" Your Way to Justice: How Judge Posner Was (Almost) Correct in His Use of Internet Research in Rowe v. Gibson,
Seventh Circuit Rev.
Available at: https://scholarship.kentlaw.iit.edu/seventhcircuitreview/vol11/iss1/2