We take a break from Casey’s BS series and point you to a historical review of the “cutthroat” legal research industry as it moved from print, hardbound reporter sets, to the online legal research systems which we know today. Whenever an industry is disrupted by a new technology, the players within the industry can play hardball with each other, and that typically leads to litigation as everyone scrambles to protect their stake in that industry. Legal publishing was completely disrupted in the 1990s, and Alan Sugarman from HyperLaw was on the front lines of this battle. Sugarman tells his story to Sam Glover, over at The Lawyerist, and it is definitely worth a listen.

Sugarman describes the history of his battle with Westlaw and their claim to copyright on a number of issues, but primarily Sugarman’s discusses his suit against Westlaw’s claims of copyright on the text and the citation of court opinions. It’s a fascinating listen on how the legal research industry shifted to online research and the different issues surrounding the transformation.

It reminds me of my days with the Oklahoma State Court Network (OSCN.net) and when we adopted the vendor-neutral citation system we adopted and made official in the 90s. Sugarman talks about the vendor-neutral system and his stress on including the docket number of the court decisions within the vendor-neutral cites.

Hat’s off to Alan Sugarman for his rebellion in the 1990s. Take a listen to “The Lawyerist Podcast #151: How Westlaw Lost its Copyright, with Alan Sugarman.” Without the likes of Sugarman and others who challenged the behemoths of the legal publishing world, we wouldn’t have products like Google Scholar, Fastcase, and other legal research resources today.

The talent at Columbia Law School apparently doesn’t limit itself to legal scholarship. The Law Revue put together a musical rendition of which online legal resource is the best “to cite… to cite.”

Whether it is the bribery of using Lexis, the snobbery of using Westlaw, or the lone man that uses Bloomberg, the Law Revue walks you through the law students’ night of deciding which resource is best.

So pick up your Lexis/Westlaw/Bloomberg coffee cup and sit back and enjoy the show.

[Ed. Note: Please welcome back guest blogger, Marcia Burris, Research & Information Services Consultant for HBR. – GL]

A lot of attention has been given lately to the trend of law firms cancelling subscriptions to expensive online resources. This is often referred to as going “Sole Provider” since it has long been assumed (for a few decades, at least) that “good” law firms subscribe to both of the Big Two legal research providers, Lexis and Westlaw. In recent years however, many firms have decided they no longer need both. In an effort to measure the trend, law library surveys, including the one administered by HBR Consulting, routinely ask about whether firms are planning to (or already have) cut Westlaw or Lexis. However, while the term Sole Provider is easy to say and generally understood in the law library community as cancelling one or the other of these two services, it really isn’t the best way to describe current practices in the world of legal information, and in fact can cause harm to the conversation. So here’s why Sole Provider isn’t really a thing, and why I’m not going to say it any more.

  1. First of all, it isn’t true. Certainly not in Big or Medium Law, and probably not even in the vast majority of Small Law. No firm uses only one source for all its legal research needs. Cancelling one of the historical duopoly providers doesn’t mean attorneys will be limited to just one single source for all their legal research questions (although some attorneys may by choice return to the same well over and over again.) Law firms will continue to offer a variety of information resources – and formats – to meet their attorneys’ practice needs.
  2. Using the term “Sole Provider” needlessly reinforces the expectation of legal research Duopoly by implying that firms are choosing one and cancelling one, and fails to adequately describe the variety of different choices firms are making today. In doing so, it devalues the contributions of numerous providers beyond the traditional duopoly, whose innovations are creating new ways to think about and use legal information. This can cause real harm, as holding to the outdated duopoly concept hamstrings the decision process, limiting creative thinking about what resources firms should be offering to their attorneys and distracting from important discussions about new opportunities to evolve and modernize research services.
  3. In addition to reinforcing the idea of duopoly, the Sole Provider concept is often associated with cost reduction efforts, and this creates a value judgment which critics can leverage against firms (and librarians), no matter which way they go with the decision. Firms which keep both traditional major providers can be criticized for overspending, while firms which cancel a major service are criticized for prioritizing cost reduction over efficiency and service. (This reminds me of the working mom vs stay-at-home mom controversy – truly a debate with no winners.) Just as the duopoly concept narrows thinking about options beyond the Big Two, the question of Cut vs Keep limits the discussion to an either/or which fails to address the nuanced resource needs of individual firms, which ultimately drive their purchasing decisions.
  4. By referring to only a single facet of resource selection, the term devalues the important work law librarians do in carefully curating information collections to best meet their firms’ needs, and distracts from the question we should really be asking: What is the best mix of resources to meet our firm’s needs now and into the future?

It’s time to reframe the discussion. Instead of referring to “Sole Provider” decisions, let’s start talking about *Legal Research Optimization*. The discussion should include subpoints related to content (primary & secondary), efficiency of use and administration, attorney support, resource interrelatedness and content integration, cost, practice-specific needs, business needs, evolving technology, and client demands. Rather than allowing the status quo to set the tone of our discussions, let’s ask what should we include as we build the law library of the future for our firms. Firm needs and information resources continue to evolve, and libraries today have the opportunity to do more than ever before to support attorney practice needs. With the baggage of the sole provider conversation left behind, we can move forward and continue working to align information resources with firm needs, with freedom to explore the best fit for the future.

Definition of algorithm : 


noun al·go·rithm ˈal-gə-ˌri-thəm  – a step-by-step procedure for solving a problem or accomplishing some end especially by a computer

When I attended the WestPAC Law Librarian meeting in Jackson Hole, WY a couple of months ago, I had the opportunity to sit in on 
University of Colorado Law School’s Susan Nevelow Mart’s presentation on legal researcher’s reliance on algorithms for online legal research. Susan’s presentation discussed her SSRN Paper entitled “The Algorithm as a Human Artifact: Implications for Legal {Re}Search” where she breaks down the algorithmic affects of Westlaw, Lexis Advance, Fastcase, Google Scholar, Ravel Law, and Casetext. 
The key thing to remember, says Mart, is that we “need to remember that the algorithms that are returning results to them were designed by humans.” That includes all the “biases and assumptions” that come with the human experience. In other words a little bias and assumption on the part of the people developing the computer algorithms can cause dramatic changes in the results produced with similar content and search terms. As a researcher, Mart states that it is important that we “acquire some expertise about the technology at the meta-level.” How can you trust the results if you are not familiar with the way the tools are designed to index, search, and retrieve those results? The problem with this argument is that most legal research providers don’t want to reveal very much about the processes that go on behind the scenes to pull those top 10, 25, 50, or 1000 results. Mart is calling for more “Algorithmic Accountability” from our legal databases in order to help legal researchers better understand the biases present in the retrieved results.
Mart’s paper and research behind it attempt to test the different legal research databases on same search terms and same data content, and evaluate the results to see where results overlap and differ. The experiment wields results that are, in Mart’s words “a remarkable testament to the variability of human problem solving.” The top ten results from each resource showed very little consistency, and “hardly any overlap in the cases, and only about 7% of the cases returned were in all six database results. That low of a return rate should cause a bit of a shudder to run up the spine of legal researchers.
What is a researcher to do in this day and age of very little Algorithmic Accountability? First, researchers need to call upon these database providers to give us more detailed information about how their algorithms are set up, and the technical biases that result from these rules. Mart states that “the systems we use are black boxes,” that prevent us from understanding how these technical biases skew the results of our searches. “Algorithmic accountability will help researchers understand the best way to manipulate the input into the black box, and be more certain of the strengths and weaknesses of the output.”
Until we better understand the processes that go on in the background, researchers today should expand their searches, and use multiple databases in order to reduce the effects of technological bias. Mart explains that, “[t]he uniqueness of results may show something about the world view of each database that suggests that searching in multiple databases may be the 21st century version of making sure that multiple authorial viewpoints are highlighted in a library collection’s holdings.”
Within the SSRN paper, Susan Nevelow Mart presents the findings of her Empirical Study and breaks out the results by:
  • Uniqueness of Cases
  • Relevance
  • Relevant and Unique
  • Number of Results Returned by Each Query
  • Age of Cases
The different databases have individual strengths and weaknesses in each category, and the results, read as a whole, back up Mart’s suggestion of searching multiple databases. Until legal research providers begin to open up their black boxes and adopt more Algorithmic Accountability, researchers will need to expand our own legal information literacy with a better understanding of how each database compiles, categorizes, indexes, searches, and prioritizes the results. Hopefully, Mart’s research, and pressure from lawyers and researchers will help push these providers to shine a little more light into their algorithmic black boxes.

[ed. note – Updated at 11:30 CT to include Ravel Law as part of the databases reviewed by Susan Nevelow Mart. – GL]

If you’re going to submit documents with citations to unpublished decisions to US International Trade Court Commission Administrative Judge Dee Lord, you’re going to have to make sure it has Westlaw citations and not Lexis. In Judge Lord’s ITC Order [pdf] she ordered the parties to change the “incorrect” LEXIS citations for unpublished decisions and resubmit the briefs and reply briefs with WESTLAW citations.

The parties’ post trial briefs and reply briefs include several incorrect legal citations and citations to LEXIS databases for unpublished decisions, which are no longer available to the USITC. To ensure that the cited legal authority is considered, the parties are hereby ordered to review their briefs and verify the accuracy of their citations. The parties shall file corrected briefs, no later than February 14,2014, using Bluebook formatting for citations, fixing any errors in the citations and including WESTLAW citations for any unpublished decisions (including USITC orders and opinions).

Judge Lord joined the ITC Bench in September last year, and it would seem (and I am hoping) that this is her preference to how she wants briefs filed and not a larger trend. Since according to the USITC website [pdf, page 21], decisions can be researched on both Westlaw and Lexis, it would seem that both citations would be accepted by the USITC. However, the part in Judge Lord’s decision that says that Lexis unpublished decisions “are no longer available to the USITC”, may be driving this decision and thus creating an “incorrect LEXIS” citation.

This type of decision could mean that anyone submitting documents to the USITC would have to use Westlaw in order to submit “correct” citations. Let’s hope not!! Of course, it would be great if the courts would use a universal citation for their published and unpublished opinions, but that might be just too much to ask…

[Hat tip to Amy for pointing this out, and to Mark for getting me the USITC mention of using Westlaw or Lexis for USITC research.]

[Ed. Note: I incorrectly referred to the ITC as International Trade Court. I should have said International Trade Commission. – GL 2/15/2014]

According to Thomson Reuters’ Second-Quarter 2013 Results, the revenues coming in from WestlawNext has hit the 80% mark of total Westlaw revenues. For some of us, it may seem that it took a long time since the launch of WLN in early 2010 to hit this threshold, but with all the fluxuation in the legal market, and the intitial clumsy sales pitches to existing clients, it actually seems that we are well on our way to a phase out of Westlaw Classic. If I had to guess, I would say that Westlaw Classic probably will go away at the end of 2014, with exceptions made for clients under existing contracts. Of course, as many of us user see each day, that means that all of the content that hasn’t been converted to WLN will need to be completed.

The rest of the quarterly report looks pretty good for Thomson Reuters:

  • Looks like the Financial Sector is finally giving in and buying the Eikon desktop (up 30% from the first quarter of this year.)
  • Print is still declining. This quarter US Print Revenues were down a significant 7%.
  • Academics and Governments are cutting – but only a 1% decrease in Thomson Reuters’ revenues. This is surprising to me. I thought it would be more.
  • The PLC purchase hit their margins in legal (an astonishing 38.5% margin at that…), but I imagine that they can turn PLC into a cash cow.

So, for those of you that thought that the stagnant legal demand that is fueling the articles on the Death of BigLaw would also mean the Death of Big Legal Publishing, it doesn’t look like Q2 of 2013 is trending that way.

Image [cc] Salem State Library

Maybe I’m reading a bit much into this announcement from the Dorraine Zief Law Library at the University of San Francisco, but, the fact that Westlaw has decided to allow graduating law students access to their law school Westlaw IDs through the end of November seems to be a sign that even the folks up in Eagan, MN know it’s a tough market for law grads.

Graduates that go to extend their passwords by May 30th can have access to Westlaw classic and WestlawNext through their student logon. According to the USF post:

Graduates who extend their password will receive access to WestlawNext and Westlaw Classic through November 2013 instead of just through July.  The exact number of monthly access hours is not available, but is at least 40 hours per month.

Graduating students who have already extended their access don’t have to do anything further to get the extension through November.  There’s a link to the extension site in an  e-mail sent to graduating students.  Students may also click the “Need Westlaw this Summer?” ad on lawschool.westlaw.com.

I’m glad that Thomson Reuters decided to allow grads to keep access to this very expensive resource to help keep their research skills fresh as they are hunting for work. Of course, I’m wonder who will be the first grad to put on his or her resume that “if you hire me, I’ll have 40 hours of free Westlaw searching I can bring with me”?? Please, don’t be that person!!
 

Big hat tip to my friend Jason Wilson in pointing out the new rebranding of Westlaw into the new “Legal Solutions” product, and for pointing out that Thomson Reuters is using a very familiar looking color and layout design that seems to be borrowing heavily from the Bloomberg Law product. Perhaps Orange, Gray, Black, and Blue are just the hip trends in New York these days. But, seriously, if you took away the mention of Bloomberg Law and Thomson Reuters’ Legal Solution, you might be hard pressed to tell the difference in the two products. [Note: an Arthur Andersen alum pointed out that they actually had this color scheme by in 2002 way before TR or Bloomberg started using it.]

Jason sums up my thoughts quite nicely on the similarities:

TR pages are getting dangerously close to the same color scheme of Bloomberg Law, and it makes me wonder why they are trying so hard to compete with something that hasn’t seen widespread adoption?

Alright Lexis… apparently you’re late to the game. Time to switch Lexis Red, and go with a Bloomberg Orange! After all, anyone that is in the know, knows Lexis is much more in the crosshairs of Bloomberg than Thomson Reuters is.

Judge for yourself (FYI – Bloomberg=Left; Thomson Reuters=Right):

Image [cc] mattlary

It was a rough time for the Empire. 

Online case services were multiplying fast and furious.  Yes, even their vaunted reporter system had been compromised.  The beginning of the end began in the late 1990’s, when even the Courts had ruled against them.  It became more important than ever to just hold on, to jealously guard what was left from the encroaching armies of Competition. 

First, a little background:  This is about the use of parallel citations.  Legal documents, in my experience, use case law to support arguments made and positions taken.  And it’s important that the case is properly cited to both point to the source of the discussion and provide a way for the reader of the document to confirm (or deny) the reasoning made by the author.  In most cases, the author will add parallel or additional citations from non-official sources as a courtesy for their readers.  There are some judges that do require these to be included but I believe it is done for the reasons outlined above. Online services also routinely include citations to other services as well as their own without regard for the effect it may have on their own business, a practice that can only be described as extending this courtesy.

Now to the event that prompted this posting.  A letter recently obtained by 3Geeks was sent out by Westlaw outlining the possible issues surrounding the use of their WL cite for unpublished decisions by Lexis Nexis  as part of displaying the various parallell citations associated with a particular opinon.  The letter references an advertising campaign trumpeting the availability of parallel citations, with this one spotlighted, for unpublished opinons.  They also imply that these cites can only be presumed to be accurate only on their platform (Westlaw).  Frankly, I’m not sure why they weren’t flattered by the tacit acknowledgement of their competitor that their brand was respected enough to reference.

Parallel citations from other publishers have been routinely used by both Westlaw and LexisNexis for several decades.  Both have made a name for themselves as an accurate purveyor of legal information (including citations) that set them apart from such services as Google Scholar.  Although I am sure that Westlaw feels that this response is justified, I think that to respond to what is really a common industry practice indicates a surprising degree of desperation.  When asked by 3Geeks to respond, Lexis stated simply that these “parallel citations are lawfully obtained from reliable and accurate sources and are subjected to the same high quality editorial processes used for all of our case law collection.”  The Westlaw letter reminds me of the Daffy Duck/Bugs Bunny cartoon where Daffy must have the entire treasure of Ali Baba to himself and literally shows how small he is as a result.

As a research professional,  I find it difficult to understand how, or why, there would be any limitations on the use of parallel citations from any source.

Both the Westlaw letter and the Lexis response are included for your reference below:

Above The Law received an internal memo from Foley & Lardner’s CEO, Jay Rothman dated back on August 6th that announced the Foley’s Records Department would be outsourced to Williams Lea, a business process outsourcing company. To those inside the world of law firm records departments, this may or may not be a surprise to anyone that a firm has decided to outsource the function of handling documents, especially paper documents, to a service provider like Williams Lea. Looking at the presentations (PDF) that Foley’s Information Compliance Manager, Dana C. Moore, has been giving lately, it would appear that Foley has been planning a streamlining of the Records Department for a while. In fact, it is interesting to note that Moore’s title changed back in April from Records & Information Compliance Manager to simply Information Compliance Manager. The process change was stressed in Rothman’s memo:

Our rationale for making this decision is straightforward. The Firm is migrating away from records management processes that focus on the physical file to an environment where, in most cases, the electronic version of a document is the official record. Williams Lea has significant experience designing and implementing imaging processes, and our goal for the next three years is to re-configure and re-train the operations staff to adapt to the use of imaging technologies and work flows. Williams Lea is well-suited to implement these solutions and to provide the training and support that the records management personnel will need to be successful in the future. (emphases added)

Best of luck to those on staff at Foley in landing jobs at Williams Lea.

The second tid-bit of news that came out in the letter from Jay Rothman was his mentioning that Foley is now a Lexis-Only shop, apparently dropping Westlaw as part of an overall initiative.

Consistent with our strategic plan, we asked various Firm administrative leaders to identify and implement changes to streamline the processes that they oversee, with a focus on becoming more efficient and cost effective. The resulting initiatives are aligned with our overarching objective of delivering exceptional client service and promoting innovation in our work processes and staffing models. All of these efforts are intended to position our Firm for long-term success. The decision to migrate to a single source research provider for library services (Lexis) is a recent example of one of these initiatives. (emphasis added)

For many of us in the law library world, we’ve been waiting for a BigLaw firm (Foley falls in at #45 in the AmLaw100 revenue rankings) to pull the trigger and go to a single legal research provider. Now we have someone to use as an example. Now that the seal is off that bottle, it will be interesting to see how many other BigLaw firms finally start looking seriously at dropping the two-vendor legal research model and start going as a Westlaw, Lexis, or even Bloomberg Law only shop.