A Notice to Lexis and Westlaw: You would be well-advised to read this post since it proposes a better model for your products. (As for the royalty checks you’ll owe me, let’s talk…)
For a few brief months early in my legal career, I was a litigation associate. As such, the main focus of my days was legal research. Being a diligent sort of person, I’d spend hours tracking down one case after another and yet, despite my conscientious approach, I could never entirely dispel the nagging feeling that somewhere out there was the one case that could blow my research out of the water. Surely, I’m not the only lawyer who has confronted this.
The cause for this anxiety was the knowledge that my search results were only as good as my search technique. And I was honest enough with myself to know that I wasn’t nearly as expert at searching as, for example, a research librarian. However, in those days, it really wasn’t the done thing to have a research librarian do your research for you. So I soldiered on and tried to refine my search methodology.
With the benefit of hindsight, it seems obvious that the current approach to legal research is fundamentally flawed. Lexis and and Westlaw have created these enormous databases of case law that cannot be completely mastered unless you have world class research skills. In fact, what they’ve created is a frustrating game of “find the needle in the haystack.” The problem is that the people who need the cases aren’t always the best equipped at finding the cases, and the people who are expert at finding cases aren’t the best equipped to analyze and use them. Further, most law firms don’t promote lawyers on the strength of their research skills. Rather, they promote lawyers on the strength of their analytical, advising, negotiating, writing and business-winning abilities.
It would be better if Lexis and Westlaw aligned themselves with their customers’ need to improve analytical capabilities. Here’s the new model I propose: instead of forcing lawyers to come up with appropriate search queries, Lexis and Westlaw should ask lawyers questions to elicit information about the case at hand. In other words, the role of the lawyer searching for precedent would be to analyze their own case and strategy and provide that information to Lexis and Westlaw: what are the pertinent facts of the case, what jurisdiction, what procedural approaches is the lawyer considering. Then, Lexis and Westlaw would deliver to you links to groups of cases that match your facts within your jurisdiction. You could then review them to see how closely aligned they are to your situation. Ideally, this approach would reveal the array of ways in which lawyers before you had handled this fact pattern in your jurisdiction and would highlight opportunities for following precedent or striving for innovation. Better still, this should reduce (if not eliminate) the nagging worry that you’ve missed a case.
What’s different about this approach? Success depends on a lawyer’s ability to understand that facts and context of the case at hand, not that lawyer’s ability to construct the perfect search query. It would no longer be a hit-or-miss proposition depending on your skill at constructing boolean or natural word search queries. (Of course, it would also depend on Lexis and Westlaw profiling and organizing their cases differently, or adopting search technology that is more sophisticated than simple word searching.) The result is that both lawyers, on the one hand, and Lexis and Westlaw, on the other hand, start focusing on their strengths. Lawyers build their analytical muscles and the online research companies get better at organizing and delivering comprehensive results to you.
Now imagine a law firm in difficult economic times considering whether to drop one online research provider in favor of another. What if one provider were to offer these comprehensive (and more appropriate) search results? Would there be any contest?
In this blog post I’ve provided information on my innovation to Lexis and Westlaw (and any other online legal research provider interested in conquering this lucrative business). I wonder which one will be hungry enough to adopt this proposal?
[Photo Credit: Garry Willmore. I’d highly recommend that you click on the photo above to read Garry Willmore’s commentary on this photo. It’s priceless!]
Above and Beyond KM 
Mary, as someone with (forgive me) considerably more experience than you identify here in researching case law, and in someone who has spent a fair bit of time assisting lawyers at my firm find answers relating to that body of knowledge, I have a few comments.First, I have learned that when doing legal research good lawyers often reject the very assumptions behind the questions that would get you to a particular body of substantive case law. Why am I in state court? Do I have to stay there? Is there federal law (the Federal Arbitration Act, or the Miller Act) that preempts the state law that the other side is trying to rely on? What are the key facts as I see them about this case, and what are the possible claims, counterclaims, procedures, or defenses, thereby merited, that might justify a decision in favor of my client? It's one thing to simply find the summary judgment standard for an employment discrimination case in Massachusetts Superior Court, but it's quite another to do truly value-adding legal research, for these reasons.Second, let's assume you get past that. How then do you construct your engine? What are the possible facts that would lead to a particular set of cases? Don't you have to construct an engine more complex than the body of law? Occam's Razor would suggest that your new engine is not a better solution. Just as I like the idea of providing personalized, actionable information to attorneys and staff, as on a portal, I like the idea of legal research tools made specific to at least some of the circumstances of the attorney or client at issue. I'm not sure how you can reliably do that. It may well be that semantic search, using technology to mine and identify related concepts, can advance legal search by enhancing results for those who don't have top-notch search query creation skills, but who can feed enough facts into the hopper. This may be research of the “good enough” variety rather than the “top quality” we've come to expect.
David –
Thanks for your comments. You definitely have more experience w?th
litigation than I do. And you're right that often the key to construct?ng a
winning strategy is to reject the more pedestrian approaches. However, one
needs to walk before one runs and I can see a role for an intelligent search
engine that assists (at a minimum) with this preliminary “walking”
research. That said, I'm not yet prepared to give up on the possibility of
using artificial intelligence to make the lawyer's method of research more
productive and, in the case of the new researcher, more error-free. To my
way of thinking, that's part and parcel of provid?ng top quality research
results.
As an interim measure, it would be good if the type of search engine I
describe could be used to eliminate the undergrowth, thereby reducing errors
and exposing more profitable paths for research and analysis. Ultimately,
I'd like to see search engines truly partner with lawyers to provide more
uniformly reliable results. In the hands of experienced lawyers, I could see
an engine like this helping construct and validate more innovative
strategies.
As with so many things in life, time will tell if I've been unduly
optimistic. In the meantime, I appear to be on record for advocating a
technological solution to a problem. As you well know, that is not an
everyday occurrence with me!
– Mary
This is a great post Mary. This proposal is the exact process TurboTax used ( I believe it was this software) where people couldn't fill out their tax returns properly regarding their marital status for the current year. After fine tuining the software and design to ask questions, it was whittled down to a single question: basically, Were you married on or before Dec 31st? If yes, then you were taken to the next set of questions, if no, then you were taken to a different set.This idea is certainly interesting concept. Let's see what the power of blogging and social media holds!
Natalie –
Thanks for your kind words. As your Turbo Tax example indicates, we're all
still learning how to get the best out of our electronic tools. While most
legal research is more complicated than the question of establishing the
year of marriage, Turbo Tax reminds us that it is well worth the time to
refine the questions we ask to ensure we get closer to the right result.
As for the power of blogging and social media, all I can say right now is
… stay tuned.
– Mary