Jason Wilson: The digest is dead. So why isn’t the headnote?

A great deal of ink has been spilled over the last 25 years or so on the topic of West’s Digests and Key Number System, how those systems have influenced legal research and shaped how lawyers think about the law, and whether the free-text system of computer-assisted legal research (CALR) allows for deeper, more interpretive research. It’s quite a lively debate.

But this post isn’t about any of that. So, if you are at all curious about it, I suggest you start by reading Richard Danner’s excellent article, “Legal Information & the Development of American Law: Writings on the Form and Structure of the Published Law.”

I mention the debate because some recent articles argue, more or less, that lawyers don’t use the digests anymore, so the issue of whether the Digests or Key Numbers influence legal research is moot. (Please note, these articles were written before West released WestlawNext and WestSearch, which “bakes” the Key Number classification system into search.) It’s not that those systems are unimportant, but there are, as one commentator put it, “other normalizing functions at work.” Lihosit, Research in the Wild: CALR and the Role of Informal Apprenticeship in Attorney Training, 101 Law Lib. J. 157, 169 (2009-10). Check out Joseph Custer’s article, The Universe of Thinkable Thoughts Versus the Facts of Empirical Research, 102 Law Lib. J. 251 (2010), as well.

Although I would be remiss in not pointing out the fact that in the two articles I just mentioned the authors’ sampling size was quite small (Lihosit interviewed 15 attorneys from San Diego over a two year period; Custer received 121 responses to a mailed survey sent to 526 Douglas County, Kansas attorneys), I will say that their conclusions are consistent with my own anecdotal experiences. Specifically, fewer and fewer lawyers and legal researchers are utilizing the Digests, and by extension, the Key Number system to find cases. That is not to say those resources aren’t included, in some way, in their research. For example, lawyers will click on hyperlinked headnotes to find other cases listed within the Key Number or Lexis equivalent. Lihosit, Research in the Wild, 102 Law Lib. J. at 171. But, their usage is declining rapidly. And I assume that within a couple of years, the digests will be dead.

So if fewer and fewer researchers are using digests, why continue producing headnotes?

Let me be clear about one thing: I’m am talking about headnotes, not the Key Number classifications. A headnote is a summary of an important point of law, which is usually edited for concision and context. As this video demonstrates, the headnote is designed to stand alone; that is, it is designed to exist outside of the case itself. But as we complete the migration to CALR and kill off all of the print resources we’ve used to locate relevant case law, I can’t see how one makes the case for the headnote’s continued utility in our research universe.

It seems to me that if West is paying someone to put eyeballs on an opinion, that person could be adding more useful data than simply a rephrasing of a key legal issue. And by “data,” I mean “metadata,” information that is a part of, not separate from the opinion. This means we could extend the opinion by wrapping the entire order, parts, paragraphs, sentences, or words with tags that could assist in locating the opinion (via queries, search, linking, etc.) and giving greater context for it in a way that enhances the Key Number classification, but avoids the debate of whether and to what extent the “literary warrant of the Key Number System” should be expanded. For more on the literary warrant, see Dabney, The Universe of Thinkable Thoughts: Literary Warrant and West’s Key Number System, 99 Law Lib. J. 229 (2006). Perhaps it would even be possible for extended opinions to give researchers greater contextual data (both textual and graphical) around snippets to solve some of the confirmatory bias (and other) issues raised in Katrina Fischer Kuh’s terrific article Electronically Manufactured Law, 22 Harvard J. of Law & Tech. 223 (2008).

Whatever the solution, if you write headnotes, I’m afraid your days are numbered.

-- Jason Wilson

Editor's Note: Jason Wilson is a publishing exec at Jones McClure Publishing. So while he hasn't asked for the usual disclaimer, let's add that his opinions do not necessarily represent the views of Jones McClure. You can read Wilson's contributions to the legal information professional blogosphere at rethinkc.k and Slaw. Both blogs are highly recommended and if you haven't already taken their RSS feeds, well, isn't this a good time to do so? Also, many thanks to Jason for taking the time to write this guest post.

Let's also add that regular LLB readers may have noticed a trend in some of this week's LLB posts, namely one that questions whether some print publication types like reporter advance sheets, print digests and print legal encyclopedias have outlived their utility in print and are just too damn expensive to retain on library shelves. This can include the editorial production of case headnotes in print for digests and reporters and, perhaps, for electronic opinions for online search. Earlier posts:

• How Much Longer for 19th Century Legal Print Relics: What legal reference and research tool titles are obsolete and when will they disappear from sales catalogs? (Quoting Wilson: "Print digests are gone in three years, yes. Headnotes will not be written in five."); and
• Are Case Headnotes at Risk of Extinction?

Two comments.

First, those of us who have been doing this legal online search thing for 30 years now, remember the days before Lexis started adding headnotes (and the days when WALT really only searched headnotes). I, for one, didn't miss the lack of headnotes in Lexis for online caselaw research and still find no need for them in Lexis, Classic Westlaw or WLN. What we could use is far better baked-in metadata that SEs utilize but WLN's SE is insufficient on this count. For 21st Century very expensive legal search, developers need to invent, not unthinkingly incorporate their inventory of past editorial work product.

I like what Fastcase offers by way of citation analysis (30-plus years ago we called this "bibliographic coupling") which states something to the effect that "results unrelated to your search keywords" may be relevant. This is clearly indicated in search output displays so a researcher does not have a "how come?" these cases are listed reaction.

In the dark ages of 1978-1980 library school, we took keywords from LC Classification schedules, added them to MARC records for faceted keyword searching that would product search results that added a subject tree for pathing up to broader and downward to narrower records regardless of the search terms a researcher used. We never got the output display to overcome the "how come?" I got these results right without a researcher viewing the entire bib record and never got the pathway right but, what the heck, it was the late 1970s.

If a vendor like TR Legal wants to utilize its 100-year-old oftentimes revised Key Number classification system, this is the sort of baked-in metadata that can produce related broader-narrower output display results that are clearly signaled for the subject tree pathway. But case headnotes? Had no problem when Lexis didn't have them; don't see them as a major contribution to improving 21st Century online search.

Second, the timing of these posts intentionally coincides with AALL's Law Student Research Competency Task Force's online discussion and the release of the Boulder Statement on Legal Research Education: Signature Pedagogy Statement. Meaning ... just something to think about. [JH]