Flip Your Legal Research 360º

[originally appeared on Law.com June 1, 2011]

Is it time to switch your priorities to maximize benefits of tools?

It’s no secret that law firms face increasing pressure to eliminate legal research charges from client bills — and that firms, facing escalating costs for print and electronic legal research, don’t want to foot the bill, either. In 2005, I suggested firms adopt a blended approach, supplementing Westlaw and LexisNexis research with middle-tier providers such as Fastcase, Wolters Kluwer’s Loislaw, and Lawriter’s Casemaker. (Lawyers in all but five states — CA, DE, MT, NY, PA — have free access to one or the other via their state bar.)

But it may be time to reverse course, and make middle-tier providers your primary legal research tool and cherry pick resources from the big providers. Case law is a commodity — but a significant part of what lawyers use. There is no question that editorial enhancements distinguish the judicial opinions in one database from the same content in another. But there is a question as to whether that distinction provides value or efficiency to all lawyers.

Most lawyers do their own legal research, and it is not a big part of their work day. Surveys by the American Bar Association’s Legal Technology Resource Center have found that lawyers use roughly 20% of their work time on legal research. This fluctuates in the 2008 and 2009 surveys between 17% to 22%. If they’re not doing the research themselves, they’re most likely to ask another lawyer, even if law librarians are available, the surveys found.

One of the challenges for finding the right balance between cost and information access is what type of content is needed to answer the question at hand. I have analyzed usage data for the past four years in Ontario, where there are two types of electronic research environments: the freeCanadian Legal Information Institute and commercial e-databases from Westlaw or LexisNexis. Case law has remained the most heavily used content, accounting for more than 65% of research. The ABA’s 2009 survey also found that the top five types of content researched using fee-based databases were either federal or state case law, federal legislation, or citator services. (They exclude state bar association-offered services from the fee-based category.)

The time has never been better to adopt a more flexible approach. Consider a limited license or pay-as-you go access to the Westlaw and LexisNexis databases. This is not a new concept, but in the past, it was more of an option for those who could not afford fee-based options. Now you can view free access as the core of your practice research. You may have been taught to start your research in secondary materials (a digest, a text or treatise on your subject matter) but lawyer usage suggests that you could move quickly to primary law, or start there.

The key components, then, of the average lawyer’s legal research tool kit would comprise something like this:

• Case law and legislation: the more the better. If you are not already getting this free through Fastcase or Casemaker, you can buy your own subscription. See if your professional malpractice insurer licenses this sort of content for you as part of your premium.

• Citator: This used to be a must, through either LexisNexis Shepard’s or Westlaw Keycite. If that’s still your preference, you can use it in a pay-as-you go model in the U.S. The surprising data point with Ontario lawyers is that a citator was used to update fewer than one of six cases. Fastcase has made significant strides in developing a suite of tools, including the Forecite related-case tool, Authority Check, for later citing cases, and Interactive Timeline , for a visual look at your search results — for better legal research.

• Secondary resources: When it comes to legal materials beyond the case or statute, lawyers don’t seem to have a strong preference for electronic access. Hard copy sources can be easier to skim. Unless you’re in law school, you’re probably not going to be required to read a legal text or form book from cover to cover.

An electronic database would seem to be ideal at uncovering and presenting this information in a nonlinear fashion that lawyers would be most likely to use. The difficulty comes in licensing of that access. Treatises and other commentary are usually a gateway to primary law. When you license your database, it may be unclear what percentage is for primary law and what percentage is for secondary data. Buy the print versions of the books you need so that you can see exactly what titles you use and can decide when, and if, you need to update them. Supplement your books with pay-as-you-go access or find a law library that can help you.

There is much movement in these technologies. Casemaker will soon debut a new search interface; and improved research products such as WestlawNext and LexisAdvance are challenging the nimbleness of Fastcase and Casemaker.

But there is a premium cost increase to be able to take advantage of these improvements. Most lawyers pay too much money for far more electronic content than they need, as it is.

If your clients are telling you to eat your research costs, you may find significant savings shifting your legal research licensing and purchases to take advantage of innovative middle-tier case law providers.

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