Are we teaching what they will use?

Here at Stanford we haven’t shown our students Shepard’s in print in at least a decade.  And we have long since stopped using the digests in print as well.  So it was good to see these decisions validated in an article from the latest issue of Mississippi College Law Review, “Are We Teaching What They Will Use? Surveying Alumni to Assess Whether Skills Teaching Aligns with Alumni Practice,” by Sheila F. Miller.

The article wasn’t surprising to me, except the evident reluctance by law school alumni to use low-cost tools made available to them, namely Casemaker and Fastcase.

As can be seen from the frequency of usage chart, Lexis and Westlaw continue to be the most popular choices for online research. This finding is not significantly different depending on the size of firm, or year of graduation. This data is similar to a 2007 survey of Chicago lawyers in which 87% of attorneys surveyed who had practiced for zero to five years did “most” of their research in Lexis or Westlaw.   Casemaker provides free research for members of both the Ohio and Indiana Bar Associations. 43 Yet, only 16.9% of respondents used Casemaker often, very often, or always, and only 13.5% used it at least sometimes. This was a surprising number given the number of the respondents in small offices. In the follow-up interviews there was some criticism of Casemaker. For example, attorneys stated Casemaker is “too slow” and Casemaker is “not as easy as Westlaw, and I have an unlimited subscription for Ohio law.”

From Footnote #43:

Fastcase provides basically the same service for some other states, and we asked in the survey about Fastcase as well. The numbers were so low on Fastcase use that I did not include them in the tables of results.

Selling Others’ Briefs, Illustrated

To better illustrate some of the points made by Paul in his posting Selling others’ Briefs, Bryan L. Jarrett (our former student and now an associate at Jones Day) has given us permission to post two of the charts he created for his paper “Vending Appellate Briefs.”  (To recap, Bryan’s paper surveyed the practices of sixteen state jurisdictions and DC — the ten largest ABA jurisdictions (by membership size) and seven jurisdictions that did not supply copies of appellate briefs to commercial vendors.  The data was gathered in 2010.)

The first table (“Table I: The Ten Largest Jurisdictions”) displays five questions (for the jurisdictions of NY, CA, TX, FL, IL, DC, MA, OH, PA and NJ): do these jurisdictions provide appellate briefs online; do they have an arrangement with a vendor (Westlaw, Lexis) for the distribution of briefs; do these jurisdictions send appellate briefs directly to vendors; is the exchange of briefs quid pro quo; and have any attorneys objected.

The second table (“Table II: Jurisdictions that Do Not Supply Their Briefs to Vendors”) focuses on seven jurisdictions (NV, NH, NM, OK, VT, UT, and WY) and addresses the same questions as in Table I.

Selling others’ briefs

Following up on George’s post “A pair of lawyers . . . sue West and LexisNexis for reproducing their court filings,” I took a second look at a directed research paper a student did for me a couple of years ago on the subject of vending appellate briefs.  The student surveyed 17 jurisdictions — 10 that provide briefs to vendors and 7 that do not.

One of the interesting take-aways from the student’s paper is the wide variety in means by which vendors have obtained briefs.  Some states have made various arrangements with vendors; others refuse to do so.  For a very few states there is a distinct quid pro quo. Past practices will change, though, as the vendors are increasingly just pulling from posted copies; unless a court rules against such a practice it will only accelerate.

California and Pennsylvania, of the surveyed jurisdictions, both have quid pro quo arrangements.  For example, in California, the state Supreme Court used to send copies of the briefs to certain public law libraries but stopped the practice when it made a deal with Court Records Service (later acquired by West Publishing) whereby the court receives microfiche copies in return for providing the briefs.

Massachusetts has what seems like an odd arrangement whereby briefs are scanned once at the Clerk’s Office, then sent to Westlaw, where they are scanned again and later returned.

To write the paper the student called librarians, court clerks, reporters of decisions, and the vendors.  None of the surveyed court staff members reported any attorney dissatisfaction with the practice of providing briefs to the vendors.  And in one state, the Reporter of Decisions speculated that attorneys actually liked “the free advertising.”  And many clerks were surprised that this has become an issue at all since the documents are public records.

Yes, they are public records but that doesn’t mean they are in the public domain.  Yet who wins if a court rules that Westlaw and LexisNexis are infringing authors’ copyright?  My student thinks that the attorney authors are really the only winners (if they receive royalties) and most of them have already received substantial compensation for writing these briefs and all other players (the courts, the public) are losers.   I hope that in the spirit of pro bono most attorneys will continue to make their appellate briefs available to all the world and not press ownership claims (with perhaps some sort of opt-out provision for the rare instances when, for privacy or other sensitive concerns, certain briefs should not be published).   It would also be a better world if LexisNexis and Westlaw could also take responsible pro bono actions here, as suggested by Ed Connor and not profit from the work product of those in the private sector.

Here’s the cite to my student’s paper:  Bryan Jarrett, Vending Appellate Briefs: The practice, its future, and implications if found illegal.   Submitted October 30, 2010.

Abstract:

This paper analyzes the collection and sale of appellate briefs.  It presents the findings of a survey of seventeen jurisdictions.  The paper discusses how Westlaw and LexisNexis access the briefs, whether they have structured mutually beneficial agreements with the courts that provide the briefs, whether attorneys commonly object to the sale of their briefs, the likely future of the industry, and the potential policy implications of a successful legal challenge to the industry’s practices.

A Pair of Lawyers, One from Oklahoma and One from New York, Sue West and LexisNexis for Reproducing Their Court Filings

Oklahoma lawyer Edward L. White and New York lawyer Kenneth Elan sued West Publishing and Reed Elsevier yesterday in the Southern District of New York — White et al v. West Publishing Corporation et al (12-cv-01340-JSR ~ Judge Jed S. Rakoff) — for reproducing their documents in the Westlaw and LexisNexis databases.

See:

Two Lawyers Sue West and LexisNexis for Reproducing Legal Briefs

See also:

Class Action Complaint

For other blog coverage, see:

How Appealing

Volokh Conspiracy

Wall Street Journal Law Blog

The docket sheet as of today is as follows:

U.S. District Court
Southern District of New York (Foley Square)
CIVIL DOCKET FOR CASE #: 1:12-cv-01340-JSR

 

White et al v. West Publishing Corporation et al

Date Filed:

Feb. 22, 2012

Nature of suit:

820 Copyright

Assigned to:

Judge Jed S. Rakoff

Cause:

17:101 Copyright Infringement

Jurisdiction:

Federal Question

Jury demand:

Plaintiff

Parties and Attorneys

Plaintiff

Edward L. White
on behalf of themselves and all others similarly situated

Attorneys and Firms

Gregory A. Blue
Gregory A. Blue, P.C.
405 Lexington Ave., 26th Floor
New York, NY 10174
(646) 351-0006
blue@bluelegal.us
ATTORNEY TO BE NOTICED

Raymond A. Bragar
Morgenstern Jacbos & Blue, LLC (NY)
885 Third Avenue
24th Floor
New York, NY 10022
(212) 750-6776
Fax: (212) 750-3128
bragar@bragarwexler.com
ATTORNEY TO BE NOTICED

 

Plaintiff

Edward L. White, P.C.
on behalf of themselves and all others similarly situated

Attorneys and Firms

Gregory A. Blue
(See above for address)
ATTORNEY TO BE NOTICED

Raymond A. Bragar
(See above for address)
ATTORNEY TO BE NOTICED

 

Plaintiff

Kenneth Elan
on behalf of themselves and all others similarly situated

Attorneys and Firms

Gregory A. Blue
(See above for address)
ATTORNEY TO BE NOTICED

Raymond A. Bragar
(See above for address)
ATTORNEY TO BE NOTICED

 

Defendant

West Publishing Corporation doing business as: West

Defendant

Reed Elsevier Inc. doing business as: LexisNexis

 

 

Docket Proceedings

 

Filed

#

Docket Text

 

 

 

1

Feb. 22, 2012 

COMPLAINT against Reed Elsevier Inc., West Publishing Corporation. (Filing Fee $ 350.00, Receipt Number 1030502)Document filed by Edward L. White, Edward L. White, P.C., Kenneth Elan.(mro) (Entered: 02/23/2012)

2

Feb. 22, 2012 

SUMMONS ISSUED as to Reed Elsevier Inc., West Publishing Corporation. (mro) Modified on 2/23/2012 (mro). (Entered: 02/23/2012)

3

Feb. 22, 2012 

Magistrate Judge Ronald L. Ellis is so designated. (mro) (Entered: 02/23/2012)

4

Feb. 22, 2012 

Case Designated ECF. (mro) (Entered: 02/23/2012)

5

Feb. 22, 2012 

Mailed notice to Register of Copyrights to report the filing of this action. (mro) (Entered: 02/23/2012)

6

Feb. 22, 2012 

 

STANDING ORDER IN RE PILOT PROJECT REGARDING CASE MANAGEMENT TECHNIQUES FOR COMPLEX CIVIL CASES IN THE SOUTHERN DISTRICT OF NEW YORK (See M-10-468 Order filed November 1, 2011). This case is hereby designated for inclusion in the Pilot Project Regarding Case Management Techniques for Complex Civil Cases in the Southern District of New York (the Pilot Project), unless the judge to whom this case is assigned determines otherwise. This case is designated for inclusion in the Pilot Project because it is a class action, an MDL action, or is in one of the following Nature of Suit categories: 160, 245, 315, 355, 365, 385, 410, 830, 840, 850, 893, or 950. The presiding judge in a case that does not otherwise qualify for inclusion in the Pilot Project may nevertheless designate the case for inclusion in the Pilot Project by issuing an order directing that the case be included in the Pilot Project. The description of the Pilot Project, including procedures to be followed, is attached to this Order. (Signed by Judge Loretta A. Preska on 10/31/2011) (mro) (Entered: 02/23/2012)

 

 

Cross-posted at Law Library Blog.

Easy Does It: Examining First-Year Law Student Impressions of the Online Resources They Use Most Often

“Easy Does It: Examining First-Year Law Student Impressions of the Online
Resources They Use Most Often” 

LISA D. KINZER, University of Texas at Austin – School of Law

You’ve got what you get and you don’t throw a fit.

It’s a mantra heard in households across the country when kids sit down at the
kitchen table and realize they do not have what they wanted for dinner. A few
weeks ago, I had a “you’ve got what you get” moment as I was looking over data I
had collected from first-year J.D. students at the University of Texas School of
Law.

The data, as it turned out, were not what I wanted. I had asked
students to name the online resource they use most often, and then to answer a
series of brief questions about that resource. I had intended to (1) measure
student use of WestlawNext, and (2) get a sense of what students think of
WestlawNext. But in retrospect I realized I had not accomplished my second goal,
because I had failed to collect any information about WestlawNext from students
who do not use it. It is not particularly useful to hear about a resource from
its fans, without also hearing from individuals who are perhaps not as enamored
with that resource. So I could not use the data to write anything very
interesting about WestlawNext.

However, some of the data patterns that
emerged were so striking that I wanted to share them. I found that, regardless
of whether a student is using Lexis, Westlaw, or WestlawNext, students are
overwhelmingly convinced that their resource is the easiest and the fastest to
use. I also found that students are not nearly as convinced that their resource
returns relevant material or everything they need. In addition, it seems that
students simply do not care near as much about vendor rewards programs as
vendors might have us believe. And finally, to the extent that their legal
research professors have any preference as to what resource students should use,
students are either unaware of that preference or simply unaffected by
it.

In this paper, I review the data that create these patterns, and then
try to sort out what these patterns mean, practically speaking. I will begin
with an overview of my methodology, then review the results of the survey, and
then turn to the implications and possibilities for further research.

 

Source: LSN Legal Education eJournal Vol. 8 No. 41, 07/20/2011

How widespread is WestlawNext?

A student asked me this question.  Since I live and work in the beautiful bubble known as Stanford University,and have no idea how things work in the Real World, I turned to outside help to answer the student’s question.

I first asked our Westlaw representative, who provided this interesting and useful piece of information:

Based on a recent article about Thomson Reuters revenue, “The WestlawNext legal database has been sold to more than 18,500 customers since its launch in February 2010, representing 34 percent of Westlaw’s revenue base.”

http://us.mobile.reuters.com/article/businessNews/idUSTRE73R2OI20110428

 

But I knew that our students would want to know more specific information, so I sent out a quick request on the Northern California Association of Law Libraries (NOCALL) listserv.  I received 21 replies — 6 from Biglaw law firms, 8 from small/midsize firms, 2 from county law libraries, 4 from the courts (U.S. District, United States Court of Appeals and California Appellate), and 1 from a state agency.  Of the 6 Biglaw law firms, 4 have WestlawNext (although one, at present, is only making it available to firm librarians — see comments below) and 2 do not.

Of the 8 small/midsize firms, 5 have WestlawNext and 3 do not.

None of the public sector law libraries have WestlawNext.  The state agency reports that it might be added this summer.  I did find it a little ironic that the court libraries do not have WestlawNext — didn’t West get started by wooing the judiciary and treating judges extra special nice?

The comments I received were also very useful and I read many of them to my students, since they contain some great research tips and insights.

Here are a few of the comments:

I know that when firm librarians first saw the marketing materials, we were worried that the quality of search results would go down due to the one-box searching, but if anything the opposite has happened.  The result ranking is much better than it was previously, and you can see a lot more information before clicking into a document, which is great.

Our firm has a flat rate contract, so even though there is a cost for the original search ($50), the amount billed back to the client is significantly lower.  They shouldn’t be scared to use the resource due to the cost (at our firm anyway).  It’s in line with Lexis and the old version of Westlaw.  But of course, books are still cheaper.
Of course, they should still use good search practices so we’re not charging the client needlessly – searching broadly and then narrowing the focus, thinking before clicking into documents, checking before getting material from outside our pricing plan.  You can refer back to materials saved to a folder for a year, for free.  I’m saving a ton of material to folders.
The “price triggers” that incur costs: initial search, opening a document, clicking on the keycite materials. 
Our firm’s flat-rate contract doesn’t cover the PDF images of reporters – that’s the only place where you’re not warned before getting material outside of our contract.
We did a firm survey last year, and honestly, most of our attorneys start their research process on Google because it’s free.  Once they have useful information (like a case name or a statute or a law review article), they’ll go online and find all the related documents and secondary sources.  WestlawNext does a really good job of that, and the new format for KeyCite makes it easy to trace between material types. 
 
One more caveat: Keycite and Shepards both may say a case is good law when underlying statutes or cases have been invalidated (not always, but sometimes).  They don’t always catch it when a case has been invalidated by new legislation, as well.  Knowing how far to trust citator services is important.

 ————————-
 
Only librarians have been given permission to use WLN.  We will be offering mandatory class(es) on the product before attorneys are given passwords to access it.  We are aware that the law school students have been exposed to WLN & will likely expect to use it upon entering into the firm environment, so our window to get up-to-speed is fast approaching.Caveats:  Not everything has been loaded into WLN, so it could be frustrating to attorneys when prompted to transition in the middle of their research  to go to Westlaw. We’re also not sure if the costs will increase since clicking on any results keeps adding up the total.  I know we librarians have had conference call discussions about some of the quirky searching & results . . . .  Do I like it?  I had a trial ID & have not used it much since our contract went into effect in January.  I’m still “on the fence” about it, but realize it is the wave of the future in this Googlish society.
 
————————-
 
The federal courts do not have WestlawNext at this time, and my understanding is that while the Administrative Office in D.C. has discussed it with Thomson-Reuters, there is no plan to purchase it for the federal judiciary in the near future.
 
———————–
 
We are using it.  The attorneys really like it.  One thing I’ve learned about it is that you should never choose the hourly setting on WestlawNext.  Always use it in transactional mode since the nature of it promotes lots of browsing time.  Most law firms are turning off the hourly feature and forcing transactional mode, but if not it can wreak havoc with your flat-rate contract client allocation.
 
————————
 
My advice for students:  Know how much the search costs are before you do it.  And always call the research attorneys — they know their tool better than any of us ever will.
 
————————-
 
We aren’t using it in the [state] Judicial Branch.  It’s way too expensive and we can’t afford it!  And if Westlaw itself becomes too expensive for us we may be forced to use just one service.  Since Lexis has the official reporting contract, we must have access to them.
 
————————
 
We do not have WestlawNext.  We did a trial of it and it has potential, but we are not willing to pay extra for it.
 
———————-
I see other problems besides cost for WestlawNext in law firms.  To oversimplify: Google on new steroids represents WestlawNext’s research model. That model shows remarkable detachment from application to real-life research problems in law firms.  The stock examples used in WestlawNext’s demos fit TR’s marketing well enough, but I could not translate them into everyday, online research done in law firms. I also see evidence of algorithmic anomalies – possibly widespread – that have only begun to be explored.
 
———————–
We have been using WLN for the past year.  We hopped on the band wagon pretty early due to a demo seen here by our litigation partners.  The litigation attorneys like it a lot.  Power users of regular Westlaw have a big learning curve so do not like it quite as much.  It is great, however, for researching an area you may be unfamiliar with since it will give you the most relevant cases up front.  Our attys like this feature.  The attys also like the cost..they can figure out how much their research will cost them before going in since a search runs about $65
and then you can open as many docs as you want until you hit your research budget ($15/doc. or so).  It relieves some the pressure they feel when going in.  I think it is here to stay.  Even [after] I have cancelled Lexis access here, cut my print budget and staffing, the WLN contract was added without blinking an eye. . . .
 
———————–
 
We require everyone to be trained first on regular Westlaw. We will then train them on WestlawNext.  There a cost pitfalls with both.  Searching is cheaper and broader with WestlawNext, but if you want to look at lots of documents, you will run up the costs. Initial searching Westlaw is probably narrower (have to select a database), but then the documents don’t cost additional to view.
 
———————–
 
I would recommend that students avoid WestlawNext like the plague until they have a solid grasp on doing research on their own.  You do not want to be dependant on an algorithm created by a corporation to be able to do an essential part of your job.
 
I think Next can be a valuable tool and time-saver for attorneys who understand what the algorithm is doing and what the resources are it is returning in the results, but I worry if students start learning how to research using Next, they will not be able to do any research when they leave school unless they are using, and paying a steep price for, Next.
 
———————–
 
The two main reasons [we don’t have it] is that Westlaw would require us to have a separate contract for WestlawNext (we see this as paying for Westlaw twice), and WestlawNext does not have all of Westlaw’s content. . . .
 
————————-
 
Though honestly we haven’t embraced it completely and probably won’t until West tells us they are pulling the plug on classic.  I think it is a good product.  I like the $60.00 search and the left-hand screen that guides you to your hits.  The biggest issue is the pricing per document.  Those clicks just add up.  I am planning on asking our summer assoc. class if they are using Classic or NEXT, then based on the response, the rep. will concentrate on one or the other for the orientation. It will be interesting to see where the product stands with this first summer class who have potentially been using it at school.
 
———————–
 
We at the California Appellate Courts are not.  We have Westlaw and Lexis . . . [and] should be rolling out LMO [Lexis for Microsoft Office] soon, but that is as fancy as we are getting.
 
 
 
 
 

Bloomberg Law’s discounts challenge information suppliers

“Bloomberg Law’s discounts challenge information suppliers” is the headline to a story in today’s Financial Times (p. 19) by Andrew Edgecliffe-Johnson.

The story quotes Lou Andreozzi, the new head of Bloomberg Law, on the company’s efforts to persuade attorneys to consider at least replacing one of their “Wexis” accounts with Bloomberg Law, since Bloomberg’s flat rate pricing (quoted at $ 450 per attorney) is preferable to the “more expensive and unpredictable sums” charged by the competition.

The story also reports how “Bloomberg has recruited ‘hundreds’ of lawyers to create a citation system, which advises users whether cases are still in use, to rival those owned by Westlaw and Lexisnexis.”

The story quotes analyst David Curie who says that “Bloomberg looked unlikely to make big inroads in the short term, but its ‘deep pockets’ made it a long-term challenger.  ‘The pricing definitely is the most challenging and disruptive thing about it,’ he said, predicting that others may follow its flat fees . . .

The story  includes a sidebar, “Legal services industry continues to expand” which includes this information:

Law firms and corporate legal departments once looked to legal research services for basic case law, newspaper articles and public records.

As such information has become more freely available, companies such as Thomson Reuters’ Westlaw division and Reed Elsevier’s LexisNexis have concentrated to turning their databases into online tools to enhance clients’ productivity.

The sidebar goes on to use Thomson’s acquisition of Pangea3 as an example.

Bloomberg Lays Down the Law

From Crain’s New York Business, “Bloomberg LP lays down the law: Financial data giant storms legal research in its typically big way.”

Hilary Potkewitz writes: “The financial data and news juggernaut has quietly hired nearly 500 lawyers over the past year, making it the largest source of new legal jobs in New York.”

What do Westlaw and Lexis make of Bloomberg‘s ambitions in the legal research arena?

““We’re not seeing much of a change in the marketplace [because of Bloomberg]. We’re feeling very strong and comfortable,” says Mike Dahn, chief U.S. marketing and product development officer for Eagan, Minn.-based Westlaw….

LexisNexis Vice President Clemens Ceipek is more blunt. “Bloomberg has a lot of money, and that’s why we can’t ignore them,” he says, “but it’s going to be really hard for them, just like it would be really hard for us to compete in the financial markets.””

The article continues that “cost-conscious law librarians” are taking notice of Bloomberg’s less expensive flat fees and extended free trials.

“The 200 largest law firms spend an average of $2.7 million per year on Lexis and Westlaw combined, according to The American Lawyer.”  How much of that will go to Bloomberg over time?  Other contenders?  Watch and wait….

Thomson Reuters: Westlaw sales up, but print declines dragging down profits

From today’s Financial Times (p. 16), “Thomson Reuters raises revenue outlook”

“The professional division . . . saw strong subscription revenues in its large legal business, WestLaw, but further declines in its high-margin print products, dragging operating profits in legal down 6 per cent.

The new WestLawNext product . . . had been sold to more than 9,000 customers, double its initial expectations,” according to Tom Glocer, chief executive of the financial and professional information group.

Bloomberg Law’s selling point

According to this story in today’s Wall Street Journal (p. B8):

Bloomberg Hangs New Shingle

Financial-Data Firm Enters Legal Research, Challening Westlaw, LexisNexis

By Russell Adams

From the story:

Bloomberg Law says its selling point is the news and company information and financial data it has pulled from the core terminal product and woven into the legal-research materials. For example, if company X sues company Y for copyright infringement, lawyers representing company X can get more than a copy of the complaint and relevant legal history. They get stock charts, patent histories and corporate filings. In addition, the name of every judge and attorney links to a database that pulls up that person’s school, his or her holdings and boards they served onpotential conflicts and case histories.

“We think we can help both the rainmaker and the junior associate with one, eat-all-you-can, elegant, easy-to-use platform,” said Constantin Cotzias, a 42-year-old former mergers-and-acquisitions attorney from the U.K. tapped by Bloomberg five years ago to build Bloomberg Law.