WestlawNext Redux

Professor Ronald E. Wheeler, Jr., Director of the University of San Francisco Law Library, has a recent paper posted on SSRN titled Does WestlawNext Really Change Everything:  The Implications of WestlawNext on Legal Research.  He raises some interesting questions, including how it will affect teaching legal research to law students and how its mechanisms can affect future legal precedent. 

Anyone who has used WestlawNext or had more than cursory contact with publicity materials know that it is a game-changer in conducting electronic legal research.  I was with a group of faculty the first time it was formally demonstrated at DePaul.  The faculty were salivating over it, to say the least.  It's been a year now since WestlawNext made its debut and the buzz has abated to some extent.  It's really worth asking the question, now that it's here, what exactly are we getting ourselves into?  Professor Wheeler's paper is a good start in formulating an answer.

He initially compares some of the searches in Westlaw Classic to those in WestlawNext.  Though he praises WestlawNext's ability to find conceptual results against a wide variety of sources, his examples show something I've encountered myself.  That is how WestlawNext tends to fall somewhat short when searching for a document one knows to exist but when only partial information for constructing a search is available.  That result comes from the heavy emphasis WestlawNext places on searching legal concepts which is leveraged against its indexes, key numbers, and other metadata rather than specific terms.  Add to that mix the crowdsourcing or ranking of results within groups using factors such as how many other researchers used these materials.  It's no wonder a specifically sought item can get buried. 

One of Wheeler's examples is where he searched for a specific law review article and it showed up much later in the search results than the initial first page.  I think this is significant, not because one has to browse to find that specific result as much as the attention span of students (or anyone for that matter) conditioned to scanning a Google results page does not lend itself to deep browsing.  The relevancy of later results tends to drop off quickly in Google despite the fact there may be millions of hits.  The reality is no one will browse past the first few pages.  That can have negative consequences in a legal research setting. 

Another significant point raised in the paper is how WestlawNext could conceivably shape the law as use of the database becomes more prevalent.  Wheeler again uses examples where the number of cases or other types of documents returned by WestlawNext are less compared to traditional electronic legal research.  The plus of this, of course, is that these are the best or most cited materials available in relation to the query.  The negative is that it is not everything.  Legal research is one of those areas where the truly paranoid thrive.  Some lawyers litigate that way and want the comfort of knowing about every angle in the precedent.  WestlawNext may not be for that mindset. 

The real concern, though, is that by not providing every case on point, that the law will coalesce around the most popular precedent available.  I can appreciate that concern.  I've worked with enough lawyers and faculty to know that sometimes it's not enough to find a case that holds in favor of one's position.  Sometimes it is the distinct language of that holding that is more favorable to the specific facts at issue.  A turn of phrase or a more detailed statement of the law conveys context when presented to a judge that is more nuanced in stating a client's position.  While it is too soon to tell, I'm not sure WestlawNext may be up to that level of creative research.  Result ranking is no substitute for analysis in any legal research setting.  As I tell students, they still have to read the cases.  Sometimes, though, the first case is not the best case.  The WestlawNext system may imply that, however.

As we in academics teach the techniques and interpretation of WestlawNext search results, we will find that it is really good at some things and not so good at others.  We've had traditional electronic research systems for some thirty-plus years now and there is a comfort level with them certainly.  While WestlawNext is a research game-changer, it's still not the only game in town.  Anyone who strives for efficient and cost-effective research will want to know when to use WestlawNext and when to use something else to get results.

The last part of the paper touches on this.  Cost.  We in academics tend to be blissfully unaware of the commercial costs associated with Westlaw and Lexis.  There are components in teaching that try to give students some idea of the cost of commercial legal research.  Nonetheless, the teaching focus is mainly on content and technique.  The drug dealer analogy is still accurate, if not a bit tired.  The first one's free, as in get addicted to electronic research in law school, and after that you pay. 

WestlawNext's pricing structure is quite different from Classic Westlaw.  Every click seems to generate a charge once the initial search is conducted.  West counters this by noting the costs are higher, but the savings are in the efficiency of the system to get the materials in front of the researcher.  I'm not convinced, but I guess I could be if I could see some real numbers based on real research alternatives.  I'm not sure if it would or wouldn't be less expensive to gather citations and use other vetted online sources for content.  WestlawNext seems to be priced for the largest firms and the most sophisticated researchers.  Casual searching may result in sticker shock once the bill comes due.  The actual charges are cited in the paper.

As Wheeler suggests, we are still figuring out this thing.  The total research perspective suggests it is good for some types of research and not good for others.  Researchers will want to know all of the tools they have available to them and which ones to use in specific situations.  WestlawNext is a good tool, but marketing aside, it doesn't necessarily replace any of the others.  The paper covers more details and issues than I have raised here.  I would suggest anyone seeking more information to read it.  The link in the earlier paragraph should lead to a copy.  [MG]