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Changing Approach to Legal Research

I will be talking to a board of directors of a non-profit this morning about their investment in legal information and trends in usage data.  One of the things that has been of interest to me over the past few years is the seeming disconnect between the approach that librarians teach law students and new lawyers and the actual usage of the electronic resources.  The usage is measured by the legal publishers’ own data.

One of the challenges is figuring out what the data means, because there is no way to tie an action within a database to an outcome or value.  The information in this case is not tied to specific individuals or client matters, so the primary way to look at it is what is being used and how often.

Typical legal research training focuses on the secondary materials – texts, treatises, commentary, whatever – as gateway materials to the primary law that is required to support a case.  It is not that you couldn’t start with the primary law but that, in many cases, someone has already done the job of aggregating both an overview of the law, citations to relevant legislation and cases, and gives you a quick way to start your research.

Comparative needs have meant that the analysis I have done focuses on a type of activity, the search.  This is only one of a number of things a person can do within a database but it is one of the only things that is measured consistently.  For example, you could look at printing of documents but there is no way to compare a single document printed (that counts as 1) and 45 lines printed (which counts as 45 and may or may not be an entire document).

The data over the past four years has consistently shown that the most substantial search usage has focused on primary law.  The case law database searches far outstrip all other usage, and the top 10 databases – nearly all of which will be case law, legislation, and a citator – typically account for over 80% of all usage.  I was struck by the similarity in the findings by OCLC and Ohiolink that 6% of their combined collections accounts for 80% of all circulation.

One counter argument to using search as the measure is that researchers do more than search in a database.  Fair enough.  This year, we have more detailed data and I looked at browsing.  Same thing.  In fact, nearly 60% of databases were browsed for less than 1 minute in 7 months of usage.  The top two databases, both case law, accounted for roughly 80% of browsing as well.

This would seem to conflict with the anecdotal evidence that secondary materials, particularly encyclopedias and digests, are being used with any regularity.  Legal publishers are unable to provide clickthrough traffic information as you might find in Web site analytics.  That would help to show the relationship between what people access and where they go next.

Which brings me (finally!) around to one of the things that has been percolating for me.  It is probably fair to say that we have recommended that all legal research be approached the same way, with a preference or emphasis on starting with secondary resources and then shifting to primary.  At some point, though , we probably should be taking a more nuanced approach.  Whether by practice area or by years of practice in that subject area, there is a shift in what is valuable and necessary to a practitioner.

If a lawyer has been practicing in an area for 5 or 10 or more years, she will already have a substantial basis of current information.  This has been supplemented by talking to colleagues who practice in the same area, or by continuing education, or even by just monitoring the legal newspaper or other periodical put out by the state bar or state court.  Whatever the source, this lawyer probably has as good, if not better, starting points for whatever research is necessary than can be gotten from any generic text.  Legal publishers have been moving away from state-specific topical texts so there are going to be gaps even with the best secondary resources.

This is not to say texts and commentary aren’t helpful.  But it may be that their value diminishes as a lawyer gains expertise in the practice area, and so usage of case law over secondary content in electronic resources would not be that surprising.  Not only is there a tendency to want to search for cases any way – the primary benefit of the electronic legal research database is getting rid of print law reporter research – but the desire is probably significantly increased by the internal belief that the commentary is not as valuable as going directly to the cases.

As I say, I am still rolling this around in my head.  It helps me to think about why the electronic usage data says what it does.  It would also help to explain why there is seemingly a lack of consensus on law library value, because we are emphasizing resources that more senior lawyers and decision makers do not value as much as we do.  It might also provide a different way of approaching research training, if we change the emphasis on secondary resources (a bit like shifting an investment portfolio depending on age) depending on the types of practice areas and seasoning of the lawyer in question.

David Whelan

I improve information access and lead information teams. My books on finding information and managing it and practicing law using cloud computing reflect my interest in information management, technology, law practice, and legal research. I've been a library director in Canada and the US, as well as directing the American Bar Association's Legal Technology Resource Center. I speak and write frequently on information, technology, law library, and law practice issues.