Wikipedia:Primary and secondary source paradoxes in law-related articles
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 | This page in a nutshell: All legal filings are reliable secondary sources for the position of the client. Court transcripts made by reporters are reliable secondary sources. Appelate briefs are reliable and verifiable secondary sources for the statement of the underlying case and for their summaries of other case law. The concept of Primary and Secondary sources may not be logically consistent. |
The concept of primary and secondary sources is not logically consistent. Here are three paradoxes I came across while writing the Marsden motion article. Please discuss possible resolution on this essay’s talk page.
Two categories paradox
[edit]Since a court reporter makes a transcript of a trial that is usually more accurate than a journalist taking notes, the court reporter should be a better source than the newspaper quote. However, at Wikipedia, just the opposite is often argued. The court transcript is considered a primary source. If it is not considered a primary source, then a transcript of a tape recording of the proceedings, or the recording itself, would be even more accurate than the court recorder. Yet such a transcript is considered a clear primary source, and the actual recording even more so. This presents a paradox, showing that the concept of primary and secondary sources is not logically consistent.
A voice, its recording, the transcript of the recording, a newspaper reporter taking notes from the transcript, and a newspaper report of the notes are all primary sources, but some editors believe that the newspaper report—the least accurate of these sources—is a secondary source and therefore automatically a better source for all purposes, even though no such claim is made in policy.
Original source paradox
[edit]An attorney representing a client presents that client's position. Since the attorney is usually not the client, some editors claim that the attorney is a secondary source. Since the attorney is required to accurately represent their client, their representation of the content of the client's position is a reliable source for what that position is. That means any legal filing is a reliable source as to what the client holds as their position. This contradicts many consensus votes at Wikipedia that such original pleadings cannot be used since they are primary sources. This is not logically consistent with the policy on primary and secondary sources in WP:OR, which permits editors to use primary sources.
Upside-down paradox
[edit]The statement of the case in an appeal brief is a secondary source on the trial. It is also a reliable source. This is because, although an appellate brief is written by an attorney representing the defendant, it is required to present the statement of the factual basis of the case from the best light of the prosecution or plaintiff. This is similar to the Wikipedia concept of writing for the enemy, but much more forceful.
A high court opinion is a primary source for its own rulings, and so may only be used in Wikipedia cautiously. Paradoxically, since appellate attorneys cite these rulings as case law, and summarize them, these writings by the attorneys are reliable secondary sources on the rulings themselves, even though there is an admitted bias by the appellate attorneys, for one side or another, and no bias as to the statement of the high court ruling in the ruling itself. The bias of the appellate attorney is not in particular recitation of the case law, but in the selection of that case law to cite which best supports their own client’s position. Yet at Wikipedia, an appellate brief is considered even more of a primary source than the court opinion regarding it, which is not logically consistent.