8/3/11

There's One Page, In One Jurisdiction, That Will Win Your Case – Go Find It or Lose!

I watched a video called "How Thomson Reuters Redefined an Industry" last night, and found it to be an interesting account of the ideas and structure behind their WestlawNext project. Although the video is pretty much a "feel-good" piece for WestlawNext and its data structure built on NetApp, there was one specific part that I felt wasn't just a problem with WestlawNext, but rather a problem with modern legal research itself.

In the video, at about the 42 second mark, Rick King, the CTO of Thomson Reuters, says the following:
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.



This is not an uncommon view of legal research. At the AALL Vendor Colloquium, Law Librarian of Congress, Roberta Shaffer, talked about this shift away from legal research that builds upon legal concepts, and instead is built upon finding needles in haystacks:
Law today is much more data driven as more of the disputes center around finance and science. And it is much more fact focused. Legal research used to be more rooted in theory or legal concepts; where we found the concepts and then placed the facts within that theory or concept. Today we look much more at the facts and try to pinpoint the law to that exact fact pattern. Much of the tools we have these days very much foster a fact based inquiry and process. As a result of finding and following facts, we tend to rely less upon scholarly pursuits and output. And so less people read or follow law reviews, treatises or scholarly articles than they have in the past. Mainly because they don’t “fit the bill” of the exact fact based pattern and are therefore irrelevant to the process of research today.
Many of us talk about the "dumbing down" of legal research, and I usually don't agree with some of the arguments given on that topic. However, 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.

Not every fact pattern can be answered by a previous court decision. In fact, it is usually the attorney that takes a blending of statutes, case decisions, and the ability to interpret the intention of the law within the community's setting that wins the day. Fact-based, "one case in one jurisdiction," is valuable, but the research process is far greater than that idea. Admitting failure by not finding that "one case in one jurisdiction" is selling yourself and the legal research process short.

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2 comments:

Corinne A. Tampas said...

It looks as though WestNet is using the medical profession as a model: order up as many medical tests as possible even if the problem is only an ingrown toenail.

Here, the legal profession can justify finding that needle in a haystack and charge the client. The problem is, of course, clients are looking for ways to cut costs, not pad a bill.

Anonymous said...

I hate to nitpick, but it seems as though the writer misinterpreted the video. The "you haven't done your job" phrase was aimed at the makers of the tools assisting the attorney in finding the information; i.e., if the attorney is unable to find the important lynchpin of his argument while using Westlaw, then the makers of Westlaw have dropped the ball.

Although I do agree that the paradigm shift is unsettling, I don't think that this video is propagating the hyperbole that the "needle" is equal to the attorney's job.

Just my two cents.

 

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