April 2008

Pattern Jury Instructions: Free Public Access on Trial Basis

One-year pilot project expands access to the Washington Pattern Jury Committee’s work

by the Honorable Sharon S. Armstrong, the Honorable William L. Downing, and Richard F. Neidhardt

Until now, Washington’s pattern jury instructions have been available only by purchase from a commercial publisher, Thomson/West Publishing Company (West). West has held an ongoing copyright interest in these materials since our first volume was published over 40 years ago. The times, though, are changing. Starting in March, and extending for at least one year, the pattern jury instructions and related materials will now be available to all, free of charge, on a public website. This free access is being provided under a one-year pilot project that the Washington Pattern Jury Instruction Committee (Committee) has recently negotiated with West.

The Committee hopes to negotiate a further agreement that would extend this free access beyond the one-year period. Whether we will be successful in this endeavor depends on several factors, including the effect on sales of the existing West products, the extent to which Bar members support the move to free access, perhaps the availability of outside financial sources, and West’s willingness to continue the arrangement. West has been very accommodating so far, and we applaud them for their assistance.

Background

West has owned the copyright interest in our pattern instructions since the publication of our first edition in the mid-1960s. In exchange for this copyright interest, West agreed in a series of contracts to edit, print, and distribute the instructions in bound volumes (and later in electronic format) and to pay the Committee a royalty, which is calculated as a percentage of net sales. These royalties are how the Committee pays for its ongoing expenses in updating and expanding the instructions.

Over time, members of the Bar and the public have expressed a growing interest in having free access to the pattern instructions. The Committee has become increasingly convinced of the importance of, and the growing need for, providing free access to the instructions and accompanying material.

In the summer of 2006, we began negotiating with West for ways to expand public access to our work. The Committee (with the approval of the Washington State Supreme Court) and West recently entered into the agreement for the one-year pilot project. Providing free access to our work will reduce the royalties that the Committee receives from the net sales of our instructions as well as reducing West’s revenues. The parties agreed that a trial period was the best means for evaluating the project’s ongoing financial feasibility.

How the website will work

For the one-year trial period, West will operate a public website that will include the pattern jury instructions, notes on use, and comments, for both civil and criminal cases. Links for the new website will be available on the judiciary’s website (www.courts.wa.gov), and on Casemaker’s library of Washington materials, which is accessed through the WSBA website (www.wsba.org). You will not need to use a password or register in order to access the new website, and the site will be free of advertising. As new updates are made to the instructions on this website, we will take steps to announce the changes as they are made. More detailed information on this will be included on the website.

More frequent updates

Having the pattern jury instructions on a public website will allow the Committee to update the instructions more frequently, as we will no longer be limited by the constraints of paper publishing. Nor will we need to wait until we have prepared enough material to justify the expense of a new printed pocket part. The Committee will also consider high-priority changes to the criminal instructions during our civil review cycle, as the need arises, and vice versa. This change will allow us to respond more quickly to significant legislative enactments and appellate opinions.

Caveats as to frequent updates

While the changes being announced today will provide many benefits to Bar members and pro se litigants, we need to add a few caveats. First, because we will be updating our instructions more frequently, you will need to stay alert to announcements on the public website that the instructions are being updated. Second, because we will be updating our instruction in a more piecemeal manner, you will need to pay close attention to each instruction’s “current as of” date. Finally, please note that these changes do not mean that we will be able to immediately update our instructions when changes in the law occur. The Committee’s process is very thorough and takes time. Subcommittees of expert practitioners provide the first level of review and drafting. This subcommittee work is critical to our process. The drafts then go to the full Committee for further review and discussion, taking into account our members’ multiple viewpoints. We strive to work through this process quickly, while still maintaining the level of quality that the judicial system expects and deserves.

Inter-relationship with West’s commercial products

West will continue to sell the pattern instructions on Westlaw, on CDs, and in the volumes of the Washington Practice series. Many users prefer to have the instructions available in books, both for ease of reading and research and also for easier portability. Additionally, the electronic instructions that West sells include research features not available on the free public website, such as hyperlinked cross-references for the cases and statutes that are cited in the Comments, and hyperlinked cross-references to related resources available in other West products (e.g., online treatises, forms, and materials from our state and elsewhere).

How you can help

As the pilot project unfolds, we will want to hear from practitioners. Does this free access make a significant difference in your practice? Does it contribute meaningfully toward enhancing access to justice, including for pro se litigants? Is free access important enough to justify pursuing additional funding sources if additional funds are needed?

As always, we also welcome your suggestions for improving the instructions themselves. Your input is particularly helpful when you propose new language that improves an instruction. The final good news we will mention is that you now will be able to send us your feedback and input through the new public website.

We look forward to hearing from you.  

King County Superior Court Judges Sharon S. Armstrong and William L. Downing are the co-chairs of the Washington Pattern Jury Instruction Committee. Richard F. Neidhardt, the Committee’s staff person, is a principal legal analyst with the Administrative Office of the Courts. They can be reached at sharon.armstrong@kingcounty.gov, william.downing@kingcounty.gov, and rick.neidhardt@courts.wa.gov.