August 24, 2011
Legal Research Fantasies: Finding the Answer and Saving Time
On 3 Geeks, Greg Lambert takes exception to what Rich King, TR CTO, says at the 42 second mark in the below video. King states
One page from one jurisdiction may be exactly what that attorney is looking for that allows them to win the case. And, if they can't find it, you haven't done your job.
Greg was not criticizing TR Legal's feel-good video per se. It is a more general critique about legal research expections. He writes in There's One Page, In One Jurisdiction, That Will Win Your Case – Go Find It or Lose!:
the thing that does worry me about fact-based inquiries and processes is the idea that if you don't find that "one page" in that "one jurisdiction" then the idea is that "you haven't done your job." That just seems like a very high-bar to hold up for the legal profession. If we are teaching our law students, Summer and Fall Associates, our Paralegals, and our Legal Research Professionals the idea that they must find that one case in that one jurisdiction, then we are setting them up for failure.
The Fantasy of Finding "The Answer." I certainly agree. It is pretty damn rare that one will find something completely on point in one document, be it primary or secondary literature in law. Legal research is a cumlative process of knitting together authorities to craft a legal argument. This one "page-one jurisdiction-one answer" notion makes me think the TR Legal's feel-good video presents a fantasy that legal research and analysis is akin to hard science research in physics, chemistry and biology. Of course, it comes no where close to that. Perhaps TR CTO Rich King needs to read E. Scott Fruehwald's Legal Skills Prof Blog post, Five Methods of Legal Reasoning. The thought processes identified are part of the research process.
The Fantasy of Advertised Time-Savings. There is no getting around the reality that legal research is a time-consuming process even in the context of online legal search. "You can spend less time researching and more time lawyering" if you believe WLN's marketing pablum. A lot less time researching if you believe TR Legal's advertized survey findings. Check out the huge percentage difference.
But take note, TR Legal's in-house produced survey finding is refering to single digit minutes saved for very short (as in 10 minute or so) research sessions. When was the last time, any professional, lawyer or librarian, spend so little time performing legal research in the real world?
Was TR Legal's surveyed research issues intentionally designed to find that "one page from one jurisdiction" for the always hoped for but almost never found citation to something that hit all four corners of the square needed to produce a definitive answer to the research question by citing just one source? What utter nonsense. [JH]
Okay, there's a case out there--I know this from research done 37 years ago--that says that a member of a community has a right to access to a locally published newspaper. So if I find that case, I'm going to be able to get my client a right of access to the local newspaper so that my client can run the advertisement that the local newspaper turned down?
Nope, for several reasons:
1. The decision isn't one made in my jurisdiction. So the Alabama courts will consider this right of access as a question of first impression. They will consider the one case persuasive, but not binding.
2. The decision is contrary to decisions in almost all other jurisdictions that have addressed this issue.
So much for the idea of finding that one case in that one jurisdiction.
Yesterday I did research where I found the case I needed using natural language in Westlaw Classic (WLC) more quickly than I found it in Westlaw Next (WLN). Yeah, the case shows up higher in the WLN results than in the WLC results, but the highlighting ("best hit") in the WLC natural-language interface helps me find the answer more quickly. (I don't have to read as much.)
So much for finding things faster.
In fairness, I point out that WLN is sometimes faster than WLC in answering some questions. It's just another tool, not the ONLY solution. I also commend West for improvements that allow a user to get from one interface to the other interface more quickly.
Posted by: John Hightower | Aug 24, 2011 7:10:05 AM