OPEN ACCESS TO LEGAL INFORMATION

[still under revision] -- By GraceChan - 17 Feb 2010

The Problem With the System Today

Unequal Access is Unequal Justice

A West report on the American Bar Association website attempts to promote Westlaw by offering the success story of one lawyer who surprises another at a settlement conference with a case decided just a few days earlier that was accessible through Westlaw. It is troubling when Westlaw and, by association, ABA touts this kind of better access to legal information as a way to one-up the opposing counsel. This isn’t better lawyering or even better research ability; it simply means the client and his lawyer are able to afford better access. And unequal access to legal information leads to substantive inequality.

After our research memorandum last semester, our instructor informed our class that we each would have just cost our employers roughly $20,000 in legal research costs. The moral: learn to search efficiently, save your employers money. First, there is the troubling fact that Lexis and Westlaw basically run the class and subsidize the databases for law students as part of a long term sales pitch. Perhaps one relatively modest change to the class would be to have Columbia instructors provide their own Lexis and Westlaw training in addition to teaching lower priced alternatives that are available. Second, I was simply stunned at the price tag.

It turns out that legal research costs are often the second highest cost at smaller law firms, after personnel costs. Although both Westlaw and Lexis offer limited access packages at lower prices for small firms and solo practitioners, such tight-budget lawyers are often still unable to afford either Westlaw or Lexis. And what about the enterprising individuals and pro se parties who want to take it upon themselves to research a legal issue but who are unable to access Westlaw or Lexis? Unequal access to legal information thus leads to substantive inequality because those who can afford better access can afford better outcomes.

The Vendor-Firm-Client Structure

In 2008, the legal division of Thomson West generated $3.5 billion in revenue with a whopping operating profit margin of 32.1%. One contributing reason is that for the past 25 years, firms have operated on a model of passing online legal research expenses to the client, a practice encouraged by Westlaw and Lexis themselves as a way of paying for their high fees. This practice of passing online research costs onto clients meant that law firms had less of an incentive to pressure the vendors on price. Further, like most oligopolies, Westlaw and Lexis compete on product differentiation (for example, adding tabs and sidebars) rather than on price or in enhancing usability. Fortunately, this may soon change. The cost recovery model seems less and less viable in light of the move away from hourly billing and clients refuse to bear the online research costs.

The Future of Legal Information Access

How John West Made His Fortune

In 1872, John West, recognizing an inadequately-filled niche in the legal information market, began to issue a series of reporters tied to geographic regions containing all the latest court decisions. Prior to his entry into the market, legal information was in disarray. An excessive number of reports was in circulation with no coherent system of organization. Significant time lags existed with the slow release of state court decisions and the delayed availability of publications from the East Coast to the west.

The Internet Changes Everything

Today, we no longer need to worry about typesetting handwritten opinions or time lags in the availability of information. As more courts begun using word processing to write its opinions, digital copies are made immediately available. Transmission costs are lower while search algorithms continue to improve. Sites such as Justia and Cornell's Legal Information Institute offer free large collections of legal documents. States such as Wyoming, Oklahoma, and North Dakota courts post final and official opinions online on the day of decision with their own vendor-neutral citation systems.

//In fall 2009, Google Scholar rolled out a new search feature for legal texts. Although not posing a serious threat to Westlaw or Lexis yet, it has taken over the niche of free search services like AltLaw? and PreCYdent? , both of which have shut down in its wake. Google Scholar is overseen by three people, none of whom have a legal background. As always, Google’s strategy is to index everything and focus on improving search algorithms. Designed for members of the public, its brand name alone may at least give the public a sense of empowerment. Westlaw and Lexis have already been spurred to offer natural language searches as a result of popular search engines like Google and Yahoo.

Collaboration: Wiki-Law? (To an Extent, Anyway)

Also with the Internet comes the potential for large-scale distributed collaboration. As demonstrated by entities like Wikipedia, networks of volunteers can now do things that previously only large businesses with deep enough pockets and large enough staffs could have done. However, any such new platform will need to overcome the hurdles of funding and authenticity. West, after all, employs a 22-step editorial process of 800 attorney-editors who analyze the cases, write the summaries, and approve computer-generated recommendations, with multiple people cross-checking each other's work and has been around for over a century. It may take a while for lawyers and judges to embrace an information service that is neither Westlaw and Lexis as an accurate and reliable source.

Still, it is encouraging that a 2005 study by Nature found Wikipedia to be almost as accurate as Britannica, an encyclopedia whose existence predates the United States. After researching and writing a substantial part of my moot court brief on copyright infringement, I looked up the Wikipedia entry of fair use out of curiosity and was impressed. It covered every major case I used, including distinguishing factors and short, accurate descriptions. To address the issue of authenticity, perhaps we can take a page out of CanLII? or BAILII's books; those projects involve professional law societies and collaboration within the legal profession to a significant extent.

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