what is a motion to take judicial notice

The Internet has made vast amounts of information bachelor, and judicial notice can put information technology into the tape - within limits. This article discusses all-time practices for seeking judicial observe of online information.

Judicially noticeable facts require neither a witness'south personal cognition nor skillful testimony, making judicial observe a powerful, cost-saving tool. Properly used, the doctrine tin help resolve litigation at an earlier stage and shed light on the interpretation of a police, and it is sometimes the but way to add information to a limited tape.

The advent of the Internet has made vast amounts of data bachelor, and judicial notice can put it into the record. However, there are limits to what data is properly the subject of judicial discover and how information technology can be used.

This commodity reviews the uses and limits of judicial discover. Information technology then surveys some of the types of data available on the Internet and discusses all-time practices for seeking judicial observe of Internet records.

Judicial discover of factual evidence

Many topics are subject to judicial notice, some of which we hardly think of in those terms. For instance, the Lawmaking of Civil Procedure mandates that a court must take notice of state statutes, ordinances, and common police force. ¹ Courts, presumed to exist no more ignorant than the full general public, also take judicial notice of common knowledge. ²

This commodity, withal, focuses on taking notice of publicly available records from an say-so. Judicial observe may be taken of facts that can exist immediately and accurately demonstrated past easily accessible sources of indisputable accuracy. ³ For adjudicative facts (those pertaining to the parties), the doctrine is codification under both the Illinois and Federal Rules of Evidence, which provide that a court may accept judicial notice of adjudicative factual testify. ⁴

Illinois Dominion of Bear witness 201 too refers to "legislative facts," which do non direct chronicle to the parties before the courtroom. ⁵ A court may have notice of legislative facts, but the procedural requirements of Rule 201 do not employ. ⁶

In that location are many types of publicly available records that courts take judicial discover of or cite as authority (see sidebar for examples).

Particular uses of judicial notice

Judicial notice has many uses. It can innovate facts at otherwise limited stages of litigation and support legal arguments with statistical data or testify of legislative or authoritative intent. It is also extremely cost-effective.

Early or belatedly stages of litigation. Judicial discover tin exist used at an early stage of litigation to add together facts to a motion to dismiss. In state court, a courtroom may take notice of facts on a section 2-619 movement to dismiss. ⁷ In federal courtroom, a court tin can take observe of public records without converting a 12(b)(6) motion into a motion for summary judgment. ^eight Thus, judicial notice is one of the few means to put additional facts before a judge at the movement-to-dismiss stage prior to discovery.

Too, judicial notice tin sometimes be used late in litigation, when the record is otherwise complete. On administrative review, a courtroom may take notice of public records, fifty-fifty though information technology is otherwise express to the record earlier the agency. ⁹ An appellate court tin besides take judicial find of public records outside of the record on appeal. ¹⁰ And a court tin answer to a jury's request for clarification with facts capable of judicial notice. ¹¹

That said, courts will sometimes be reluctant to take judicial notice of critical evidentiary material not presented in the initial proceeding, especially with show that may be significant in the proper determination of the bug between the parties. ¹² Thus, a party should treat such use of judicial observe every bit a backstop, not a primary litigation strategy.

Statistical or persuasive support for policy arguments. Public records can exist used to support legal arguments almost the estimation of a law. For example, an agency publication describing thousands of "private railroad crossings" could exist used to evidence the applesauce of reading the governing constabulary in a fashion that assumes no private crossings exist. ^xiii In relation to the doctrine of laches, statistics of the number of prisoners in the correctional system might be used to show the administrative brunt of assuasive stale claims. ^fourteen

Judicial detect tin can too be used to found legislative history. Floor debates or a legislative commission's report can provide background on legislative intent ¹⁵ to assist interpret ambiguous statutory language.

Finally, an agency'southward prior decisions or opinions may be useful to those litigating before it. Judicial observe can remind the agency of its own position. And while prior decisions ofttimes exercise not demark an agency, they can occasionally be used to challenge an agin conclusion. When an agency departs, without explanation, from its prior policy, that may back up an statement that their decision was arbitrary or arbitrary. ¹⁶

Cost-effective evidence. Judicial find is a way to introduce information quickly and cheaply. While it can just bring relatively bones information to the tabular array, it may help go on expenses downwardly for price-witting clients or when the value of the litigation does non justify retaining an skilful.

Limits on using judicial observe

Judicial notice is no substitute for litigating a contested issue of fact. If a court takes judicial observe of a fact whose application is in dispute, the court removes that issue from the parties and raises doubt about whether they received a off-white hearing. ¹⁷ This trouble can peculiarly ascend when a judge decides sue sponte to take judicial notice, ¹⁸ which tin can give rise to an argument that a political party'southward right to a hearing was unfairly curtailed.

Even when a fact is undisputed, a party might be able to distinguish it. For instance, while the Consumer Price Alphabetize is a subject field of discover, a party may still explain that information technology should non use in their instance. ¹⁹ And fifty-fifty if a prior ruling involving the same parties is subject to judicial notice, a party may explicate why information technology does non collaterally estop them from litigating certain issues. ²⁰ A political party may too seek to challenge the veracity of a record - for instance, the authenticity of a specific recorded act. ²¹

The bones solution is to ensure that the parties have an opportunity to contest the fact of which notice is being taken. Indeed, Dominion 201 codifies that provision. ²²

Another potential upshot, specially for medical or technical matters, is whether facts are sufficiently "generally accepted" in the community to exist discipline to judicial notice, as opposed to requiring a Frye hearing. ²³ An attorney who cannot found that a given exercise is universally accustomed might take to resort to expert testimony or traditional methods of proof later on all. A quick way to establish the credence of a given fact is to cite prior decisions doing so.

Examples of public records currently online

The Internet has expanded lawyers' ability to locate and provide public records. Of the many online sources of facts capable of judicial find, the easiest to use are governmental records (encounter sidebar for examples).

The information on agency websites should not exist underestimated. Courts have been willing to look to agency websites not merely to take notice of their rules, ²⁴ but also for decisions or opinions, ²⁵ status reports, ²⁶ and statistical data. ²⁷

Some governmental units have big amounts of information. For example, the U.S. Bureau of Labor Statistics breaks down data about employment across the country, ²⁸ and Chicago's online data portal collects and provides over 800 datasets generated by its operations. ²⁹

Courts have likewise cited a number of non-governmental websites, including Google Maps and Mapquest; ^thirty online dictionaries, including Merriam-Webster; ³¹ publicly reported commutation rates and stock prices; ³² medical information, such as on fingerprinting analysis; ³³ and the websites of companies or other parties to litigation. ³⁴

As these examples show, courts have been willing to accept non-governmental institutions as authorities, including in the geographical or medical context. There are many similar examples, particularly in unreported decisions.

Detail bug regarding Internet citations

However, using the Internet as an authority for judicial notice can raise problems beyond those previously discussed.

Link rot. One problem with websites is "link rot": links that no longer lead to the intended website. A practitioner cannot presume that information on the web volition final forever. A contempo Harvard study noted, for instance, that around half of the links in existing U.S. Supreme Courtroom opinions no longer function. ³⁵ At that place is a ticking clock on all links - including those cited in this article.

Therefore, it's best to adhere a hard copy of the Net materials to the request to take observe. This ensures that the material is in the courtroom tape and that the parties and courtroom are all looking at the same materials. Including the date that a website was terminal visited also helps avoid confusion.

Identifying trustworthy sources. It tin can be hard to know which Internet sources are authorities and which are not. Few judges are willing to simply cite to Wikipedia, although it has happened. ³⁶ The seventh excursion has thus cautioned that it is important for parties to accept the opportunity to be heard prior to the taking of judicial detect of information on websites. ³⁷

Therefore, when asking a court to have find of websites, be sure to provide ample fourth dimension, and be prepared to explain why it is a proper authority. One fashion may exist to prove that other courts have relied on the site.

Conclusion

The Internet's vast resources tin can assistance litigators in numerous ways, including by fashion of judicial notice. Exist prepared to brand good use of them.

Daniel Myerson is an banana corporation counsel at the Metropolis of Chicago'due south Department of Law, Labor Segmentation. Earlier that he was an acquaintance at the Police Offices of Michael Murphy Tannen, P.C. He is a graduate of Loyola Academy Chicago'due south Schoolhouse of Law.

Public records subject field to judicial notice

Governmental records on the Internet

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1. 735 ILCS 5/viii-1001 et seq.
2. See, e.g., Geddes five. Mill Creek Country Club, Inc., 196 Ill. 2d 302, 321 (2001).
3. People v. Davis, 65 Sick. 2d 157, 161 (1976).
4. Ill. R. Evid. 201; Fed. R. Evid. 201.
5. Fed. R. Evid. 201, note to Subdivision (a).
6. Us v. Arroyo, 310 Fed. Appx. 928, 929 (seventh Cir. 2009).
7. Village of Riverwoods v. BG Ltd. Partnership, 276 Ill. App. 3d 720, 724 (1st Dist. 1995).
8. Henson five. CSC Credit Services, 29 F.3d 280, 284 (7th Cir. 1994).
9. Muller v. Zollar, 267 Sick. App. 3d 339, 341 (3d Dist. 1994).
10. Kenny v. Kenny Industries, Inc., 406 Ill. App. 3d 56, 60 (1st Dist. 2010).
11. Deicher v. City of Evansville, Wis., 545 F.3d 537, 541-42 (7th Cir. 2008).
12. See, e.g., Vulcan Materials Co. v. Bee Construction, 96 Ill. second 159, 166 (1983).
13. Wehde v. Regional Transportation Authorisation, 237 Ill. App. 3d 664, 672-73 (2d Dist. 1992).
14. Ashley 5. Pierson, 339 Sick. App. 3d 733, 739-twoscore (fourth Dist. 2003).
15. Finish Line Express, Inc. v. City of Chicago, 72 Ill. 2nd 131, 135-36 (1978).
16. Illinois Council of Police 5. Illinois Labor Relations Lath, 404 Ill. App. 3d 589, 596-97 (1st Dist. 2010).
17. Full general Electric Capital Corp. five. Lease Resolution Corp., 128 F.3d 1074, 1083 (7th Cir. 1997).
18. Pickett v. Sheridan Health Care Center, 664 F.3d 632, 649 (7th Cir. 2011).
19. Id.
20. General Electrical Capital letter Corp., 128 F.3d at 1083.
21. Doss v. Clearwater Title Co., 551 F.3d 634, 640 (seventh Cir. 2008).
22. Ill. R. Evid. 201(e); Fed. R. Evid. 201(due east).
23. People v. Luna, 2013 IL App (1st) 072253.
24. See, east.1000., People v. Beachem, 229 Ill. 2d 237, 240-41 (2008) (cook county sheriff).
25. See, due east.g., Mauvais-Jarvis v. Wong, 2013 IL App (1st) 120070.
26. See, e.g., Fedosseeva v. Gonzales, 492 F.3d 840, 848 (7th Cir. 2007).
27. Come across, due east.thousand., In re County Treasurer, 356 Ill. App. 3d 1102, 1111 (4th Dist. 2005).
28. U.s.a. Department of Labor, Agency of Labor Statistics, http://www.bls.gov/.
29. City of Chicago, Information Portal, https://data.cityofchicago.org/.
30. Meet, e.thousand., People v. Clark, 406 Ill. App. 3d 622, 632-34 (2d Dist. 2010).
31. See, e.one thousand., Laport five. MB Financial Bank, North.A., 2012 IL App (1st) 113384.
32. Exelon Generation Co. v. General Atomics Technologies Corp., 559 F. Supp. 2d 892, 904 (N.D. Sick. 2008).
33. People five. Luna, 2013 IL App (1st) 072253.
34. Meet, due east.g., Innovative Garage Door Co. v. Loftier Ranking Domains, LLC, 2012 IL App (2d) 120117.
35. Jonathan Zittrain, Kendra Albert & Lawrence Lessig, Perma: Scoping and Addressing the Problem of Link and Reference Rot in Legal Citations (Harvard Public Law Working Paper No. thirteen-42), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2329161.
36. See, due east.g., Lake Canton Board of Review v. Illinois Property Taxation Appeal Lath, 2013 IL App (second) 120429.
37. Pickett five. Sheridan Wellness Intendance Center, 664 F.3d 632, 648 (7th Cir. 2011).

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Source: https://www.isba.org/ibj/2015/05/judicialnoticeinternetera

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