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!]