An interesting blog post appeared on the Dewey B Strategic blog (the blog subhead: “Risk, value, strategy, libraries, knowledge and the legal profession”), posted by attorney and DLA Piper Director of Research Services and Libraries Jean P. O'Grady, on May 5, 2011: “The Myth and the Madness of Cost Effective Lexis and Westlaw Research Training.” It may be impossible to teach cost-effective legal research using Westlaw and LexisNexis in the manner the author describes. That said, I think the problem Ms. O’Grady is addressing is as much an result of her approach as it is a reflection of reality.
I think that there are (at least) three problems with Ms. O’Grady’s blog post. First, the tone of Ms. O’Grady’s blog post is rather negative: It criticizes, but suggests no better approaches. There may be a straw-person problem here as well: I don’t really recognize or understand the extremely detail-oriented model of cost-effective legal research instruction she discusses. She mentions that her solutions to the problems she diagnoses will be in a subsequent post, so I hope she describes her model further then. Second, her post is oriented toward large law firm research, and takes a trees-for-the-forest approach. And third, Ms. O’Grady seems never to have worked outside of BigLaw firms (that is, firms ranked in the American Lawyer 100, or of similar size), where the vast majority of lawyers do (see some numbers on firm size, below). Her approach to legal research and to cost-effective legal research teaching, reflects this: if more information, be it legal research or cost effective rules, is good, then more is better. BigLaw litigation tends to be massive, with massive discovery, trial--and legal research--budgets.
Law Practice and Overly-Expensive Memos
According to our Westlaw educational representative, there are some frightening numbers associated with computerized legal research. BigLaw firms spend approximately $150,000 a month on their Westlaw accounts. By comparison, if it were even possible to buy the equivalent of law-student Westlaw access, that sort of account alone would cost about $100,000 a month.
Such huge legal-research budgets presents a false picture of legal research in the real world of lawyering. As one of the commenters on Ms. O’Grady’s post, Chicago-Kent Law professor and Director of the Legal Research and Writing Program Mary Rose Strubbe (who practiced for four years with a small law firm doing complex federal litigation), wrote, “you imply that all or most lawyers are working at large firms, with librarians. In Illinois, for example, far fewer than 20% of the licensed lawyers work at private firms having more than 25 lawyers.”
These numbers are close to Florida’s. According to the Florida Bar’s 2010 Economics Survey, 65% of Florida attorneys work in firms of 1-5 attorneys, and 77% work in firms of ten attorneys or fewer. (DLA Piper, according to their website, has “4,200 lawyers located in 30 countries and 76 offices.”)
Given the costs of computerized legal research, it is extremely unlikely that small-firm lawyers have access to resources even approaching those available at BigLaw firms--unless they go to a library with free (limited) Westlaw or LexisNexis access.
At the run-of-the-mill small law firm, unlike BigLaw firms (which almost certainly pay a flat rate for their legal research), when a lawyer does legal research using Westlaw or LexisNexis, the meter is running. This can have frightening results. The $1,300 to $6,000 memo is real. A student of University of Arizona Law reference librarian and adjunct assistant professor Sarah Gotschall ran up about a $6,000 legal-research bill (but at least got an iPad for the $800 he eventually had to pay out of pocket). A friend of mine did it to the tune of $2,000. Even I spent $1,300 doing some in-house research, unaccustomed as I am to having to account for the cost of Westlaw access.
Granularity and “Easing In”
A major problem with Ms. O’Grady’s approach to cost-effective legal research training is this: She thinks that the solution to trainee lawyers learning cost-effectiveness is to give them a lot of detail. So much so, in fact, that she cites the number of databases that Westlaw and LexisNexis have between them, about 100,000--and implies that new legal researchers should ideally have some idea about the pricing of all these available modes of research.
How can newly minted legal researchers be expected to do this? They don’t understand some of the resources they are accessing, and certainly not their importance. New lawyers have all heard about the importance of running their cases through a citation index, but what percentage have internalized the importance of making sure all the cases they rely upon are good law? (It may take a courtroom loss for that to sink in.) Given that, how can a new lawyer figure out whether the importance of a resource justifies its cost? Law students and new lawyers should be “scared straight” slowly, and, to begin with, given a framework for understanding the costs of Westlaw and LexisNexis legal research. But that framework shouldn’t be more complicated than “This is expensive—BOO!”, with the “BOO,” of course, being the $6,000-memo story and its equivalent.
The most important example of the importance of a resource justifying its cost is, of course, citation indexing. And unfortunately, this is one area where there is no way around the Westlaw and LexisNexis duopoly. Their databases are the only ones set up for making sure that a case is still good law. Fortunately, the cash prices for this per case are not too excessive: $15.00 to Shepardize a case--cheap compared to losing a case through incomplete research. (KeyCite pricing varies by type of material.) Fastcase apparently gets asked about this a lot, and has talked about it internally. And, to speculate, doing so would let them put a big wedge into the duopoly. But that kind of database analysis, perforce done at least in part by hand, is obviously a huge undertaking. Access to ALR or forms or even headnotes is nice. But if a case is not good law, then much of the research that involves it is worthless.
BigLaw--Part of the Problem
Ms. O’Grady several times suggests that there are two sides to this dispute: The terrible information vendors, who are the true culprits in the spiraling, pathological cost of computerized legal research, and us, the virtuous law firms bearing the brunt. She even says so in a bold-faced statement: “Subscribing to the myth of cost effective research training keeps the focus off the true culprits and keeps us from demanding a real solutions [sic].” But how can BigLaw be expected to help solve the cost-effective legal research problem--boycott Westlaw and LexisNexis? The BigLaw machine would stop--obsessively over-researching issues, and the attendant huge amounts of time for which their model allows client billing, encourages Westlaw and LexisNexis, not discourages. BigLaw is part of the problem, not of the solution—for the moment, not even potentially.
Market forces may solve or help solve this--but only when the full-fee model that BigLaw firms hew to are replaced by different practice models and more sensitive billing models, as the economy changes. (The Economist ran an excellent article recently about how law firms are becoming more nimble and international, changing focus more rapidly, and retrenching, on May 5, “A Less Gilded Future.”)
A Conclusion and Some Solutions
Ms. O’Grady’s analysis is interesting and relevant. Nonetheless, she does have issues: a rather contrary tone, an over-detailed approach to cost-effective legal research instruction, and an overwhelmingly BigLaw background, far from the much more common small-firm law practice environment. Any one of those issues would be worrisome. Given all three factors, I think her perspective is somewhat unrealistic.
I do have some student-tested solutions of my own:
- a more general approach relying on a general cost-benefit comparison, perhaps;
- running some Westlaw and LexisNexis numbers with law students, clerks, and new lawyers;
- explaining, with examples and numbers, that Westlaw and LexisNexis are all but prohibitively expensive for small-firm use;
- teaching free and low-cost resources (where possible, except for citation indexing)
- the new flat-rate subscription plans Westlaw and LexisNexis are offering to solo and small-firm lawyers
- not to mention a realistic view of the contribution of BigLaw firms to the exorbitant, increasing price of computerized legal research and the lack of any responsiveness from the Westlaw and LexisNexis duopoly.
But I will go into more detail about these ideas, and examine some other possibilities later, especially after I can examine Ms. O’Grady’s proposed solutions.