Practitioners Beware…Research on Westlaw / Lexis is a Necessity in Texas?

Just happened across the recent St. Mary’s Law Journal (Vol. 40, #3, 2009) and the following article by Andrew T. Solomon caught my attention, “Practitioners Beware: Under Amended TRAP 47, “Unpublished” Memorandum Opinions in Civil Cases are Binding and Research on Westlaw and Lexis is a Necessity.”

Anything that states that using Westlaw and Lexis is a necessity is going grab a law librarian’s attention.

The article discusses the 2003 and 2008 amendments to the Texas Rule of Appellate Procedure (TRAP) 47, which deal with the citation and precedential weight of unpublished and memorandum opinions.  Solomon writes:

“The 2003 amendment was seemingly designed to make the law more readily available by prohibiting the issuance of unpublished opinions in civil cases and and authorizing memorandum opinions in place of unpublished opinions.  Despite this intention, the 2003 amendment has failed to make the law in civil cases more readily available because the newly created memorandum opinions are only available electronically via Westlaw, Lexis, and the court websites, even though these opinions are designated for publication.  Also, the 2008 amendment has now made memorandum opinions issued in civil cases since 2003 fully precedential.  As a result, to completely research binding law in civil cases, Texas attorneys must now have access to Westlaw or Lexis because the court websites lack sophisticated search engines necessary to conduct competent legal research.”

[ARGH!]

“The amendment is flawed because it makes memorandum opinions precedential even though those opinions are only readily available on Westlaw and Lexis.  This has occurred in an era when only 60% of attorneys use fee-based online research services (i.e., Westlaw or Lexis) for state case law research.”

Solomon makes a number of recommendations, including “making all opinions readily available on a sophisticated, widely available, and unified website for the Texas courts of appeals.”

As it goes in the state song of Texas, “boldest and grandest, withstanding ev’ry test,” so an accessible, complete website for the courts in Texas seems only right.

This entry was posted in Access to information, Court opinions, Court reporting, Databases and tagged , by Erika Wayne. Bookmark the permalink.

About Erika Wayne

Erika V. Wayne is deputy library director and lecturer in law at Stanford Law School. Along with George Wilson, Kate Wilko and Paul Lomio, Erika Wayne has co-taught Advanced Legal Research for 3 years. Erika's interest in Open Access dates back to the 1996 when she helped in the development of the Securities Class Action Clearinghouse -- the first court designated internet site for public posting of securities litigation filings. And, she hates to pay for *anything* that should be free. She has a law degree from Penn and a library degree from Illinois.

6 thoughts on “Practitioners Beware…Research on Westlaw / Lexis is a Necessity in Texas?

  1. Pingback: Researching Unpublished COA Opinions in Texas

  2. Pingback: Deep in the Heart of Texas, err, Google « Legal Research Plus

  3. Pingback: Don’t Mess With Texas, When It Comes to Memorandum Opinions Anyway « Advocate’s Studio

  4. Yes, the Oklahoma system is to be admired. The biggest key was probably that they created a system that let those opinions be cited by practitioners. In their case, it was paragraph numbering (which most states lack).

    I would like to see Texas move toward a system where the official online versions of a case are considered to be official enough to cite directly. That will take some work on our end.

  5. The administrator for the Oklahoma court system who is in the process of reworking their system has offered to met with interested attorneys from Texas and explain how they did it. They did it entirely “in house”. Anyone interested?

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