Online research strategies for the bookish lawyer: lawyers with more legal than technical know-how can still use the many computer tools available to enhance their research and make their arguments more persuasive.
Commercial information providers are always expanding their pools of data and adding new features that researchers must learn how to use. Internet gurus are continually reengineering how information is stored on and accessed from the Web, requiring researchers to learn new ways to obtain this information. Most of these developments were unimaginable when we "seasoned" lawyers mastered research skills using books in bricks-and-mortar libraries.
No one argues that book-research skills are obsolete, and almost everyone agrees that today's virtual library is indeed intimidating. Why not, then, just stick with books? Because judges--and ethics rules--now demand the currency that only the virtual library can provide, and researching in cyberspace can lead to more persuasive advocacy. Moreover, electronic court dockets can help you track your client's cases and obtain valuable litigation intelligence, while Internet services can give you access to court briefs and e-mail notices of important legal developments, often for free.
Lawyers' ethical duty to represent clients zealously requires efficient use of the best resources available--physical or virtual. Here are some computer tools all legal researchers can readily use, in language chosen for lawyers with more legal experience than computer savvy.
Currency is key
Imagine an attorney at oral argument in an appellate proceeding who is asked by the judge, "Counsel, did you see our ruling the other day in the Jones case, which raised the same issue?" Given today's computerized opinion trackers, it no longer seems acceptable for the attorney to reply "Not yet." In fact, failure to update legal research electronically may even constitute malpractice and a violation of the attorney's code of ethics.
There are several ways to use automated searches to flag new precedent affecting your legal position. Even if you are confident that your book research is complete, consider these steps when making final preparations to file a brief or present oral argument:
Check the status of cited case law electronically. There is little excuse these days for citing opinions that have been overruled or that are no longer good precedent. The days of getting eye strain from Shepardizing cases are gone; computerized tools replace the red books and scattered pamphlets you remember with fear and loathing. The Lexis version of Shepard's and Westlaw's competing KeyCite service are easier to use--and thus more reliable--than any comparable book resource.
Whether you are using the software versions of Lexis and Westlaw--or accessing their citator services on the Web through lexis.com or westlaw.com--simply enter a case citation. The services will produce the cited case with prominent warnings if there is subsequent history that calls the case's precedential value into question. In fact, both services offer tools that totally automate the cite-checking process for an entire document. CheckCite on lexis.com and WESTCheck on westlaw.com work with your computer's word-processing program and automatically check all case citations in a file. The programs produce a report that identifies any problematic citation.
Find out what commentators are saying about critical precedent. In addition to making sure that the cases you cite are still good law, update critical precedent by monitoring judges' and commentators' citations to it. For make-or-break precedent, the thorough researcher wants to locate any authority that so much as mentions that key opinion, whether it is another judicial ruling or a secondary resource such as a law review article. The citator services on both Lexis and Westlaw include a full display of citing authorities with hyperlinks so that you can immediately read what those authorities have to say.
In addition to merely updating case law, use your best precedent in a more creative way: Select a snippet of the court's opinion that encapsulates the type of legal discussion important to your issue and convert that representative language into a search.
You can create such a search even if you are not an expert in formulating a research query with "Boolean searching," which uses terms and connectors. Lexis provides a "More Like Selected Text" option to retrieve opinions with terminology that approximates a selected excerpt, and Westlaw offers "natural language" searching that lets you loosely describe an issue and retrieve cases that contain words similar but not identical to your phrasing.
You should always rerun your best searches just before filing or arguing a brief in court, especially when a substantial amount of time has passed since you finished researching. After all, you might argue a summary judgment motion or an appeal, for example, months after submitting briefs. Lexis and Westlaw both allow you to automate searches to rerun at periodic intervals. Best of all, they provide "clipping services" (Lexis Eclipse and Westlaw WestClips) that send e-mail notices directly to your inbox, flagging any new ruling that matches your search terms. These notices let you track legal developments relating to your issue without logging back into your research system.
Online dockets are fast and easy
By automating dockets in recent years, state and federal courts have unearthed a treasure trove of buried research gold. Online dockets provide new ways to avoid ethical pitfalls and offer a wealth of information previously unavailable.
Monitor dockets to meet deadlines. One of the surest ways to commit malpractice is to miss a litigation deadline. Litigators live and die by the deadlines--imposed by statute or court rule--for responding to pleadings, motions, and orders entered by the court itself. Indeed, under the Federal Rules of Civil Procedure, failure to receive a notice mailed by a court clerk does not necessarily excuse a lawyer's ignorance of developments in his or her own case.
All but a handful of federal courts and more and more state courts maintain electronic dockets accessible on the Internet. The federal judiciary's Public Access to Court Electronic Research (PACER) system, for example, allows a firm to subscribe to a particular circuit or district court and perform basic searches of its docket.
For virtually unlimited and easy access to all federal courts at once, however, consider a commercial Internet service, such as CourtLink or CourtEXPRESS. These services completely automate the monitoring of docket entries. Once you have established an account, enter the court and docket number, and the services will retrieve an updated docket from the court, store a copy, and notify you by e-mail of its availability. The "Alert" feature of Courtlink's CaseStream service allows you to specify any frequency, so you can even ask to be notified daily of any new docket entry. Clicking on the link provided in the e-mail message will display the latest docket, current through the previous day.
Use dockets to track new cases by party. Docket services like Case- Stream Alert allow you to track court filings by litigant name, so that you can receive e-mail bulletins whenever new cases are filed against opposing parties. If you expect that suits similar to your client's will be filed against the same defendant, you'll learn about them promptly.
Use dockets to get to know your judge. Electronic dockets let you sift through other cases handled by your assigned judge for invaluable information: Has your local or opposing counsel ever appeared before this judge? Has the judge handled many cases involving your subject matter? How does he or she typically handle discovery motions? How often does he or she grant motions for summary judgment?
At the very least, lawyers should study a judge's track record in similar cases when considering whether to file a dispositive motion. If a particular judge never grants motions to dismiss, for example, why spend hours preparing one? Such concrete intelligence might temper your instinctive urge to roll the dice by requesting early dismissal.
Use dockets for research. Electronic court dockets constitute a research repository that is nothing short of revolutionary. Why reinvent the wheel by researching from scratch, when you can obtain briefs that persuaded your judge in similar circumstances, or pleadings from a case similar to yours? Docket entries identify the subject matter of a case from the cover sheet filed at the start of any civil or criminal action in federal court, and you can also search dockets by subject matter in some state courts.
After identifying a document from a court docket, you can retrieve it with a document service such as CaseStream Historical. Imagine how helpful it would be, for example, to find a complaint that survived a motion to dismiss before the same judge you are about to face, in a similar case.
Get briefs and bulletins for free
Because electronic filing is still in its infancy, court dockets merely identify documents. In the future, they will probably contain hyperlinks to the full text of underlying documents, and litigators will routinely get pleadings and judicial rulings via the Internet. Until then, commercial information providers are the only source of comprehensive information, but some Web-based services provide free or inexpensive access to U.S. Supreme Court and federal appellate briefs and opinions. These services are disjointed, but nonetheless valuable.
Bag the courier. Lawyers filing appellate or major trial briefs often want copies of briefs that have been filed in related cases. Don't send a courier to court to copy an important brief if it is instantly retrievable for little cost or even free on the Internet.
Findlaw.com, for example, provides free full-text access to all briefs filed for cases that the Supreme Court has agreed to review. Findlaw (now owned by West Group) lacks the extensive Supreme Court brief archives found on both Lexis and Westlaw, but the Findlaw Supreme Court Center often provides hyperlinks to the full text of precedents cited in a brief, much as the commercial services do. And Findlaw's virtual Supreme Court library has at least one advantage over the commercial databases--it provides not only electronic copies in plain text, but also imaged "snapshots" of briefs in Adobe Acrobat's portable document format (.pdf).
With Adobe Acrobat Reader, available for free on the Internet, you can print out a copy of a Supreme Court brief identical to the original, down to the color of the briefs cover and the booklet format the Court requires.
The U.S. Department of Justice (DOJ) provides another Internet library of enormous value to lawyers who are interested in the federal government's legal positions. It contains an extensive archive of Supreme Court briefs filed by the solicitor general and includes important material missing from Lexis and Westlaw, because the DOJ archive is not limited to briefs in cases that the Court hears on the merits.
Finally, at least one Web service provides a searchable database of Supreme Court and federal appellate briefs for a per-document fee. BriefServe.com provides instant online access to tens of thousands of documents filed in the U.S. Supreme Court and in an increasing number of circuit courts. These briefs are fully searchable and, again, using Adobe--look exactly like the originals. You can download or print briefs for $25 each, based on a minimum of two at a time, regardless of their length.
Get court news by e-mail. In addition to the commercial "clipping services" described above, some law schools provide free e-mail bulletins describing appellate opinions from specific jurisdictions.
The Legal Information Institute (LII) of Cornell Law School in Ithaca, New York, is a leader: Since 1993, the liibulletin has delivered official syllabi from United States Supreme Court decisions to subscribers via e-mail, within hours of their issuance. A link in the e-mail message leads to the complete opinion, which Cornell augments with hyperlinks providing the full text of precedents cited by the Court.
The LII's liibulletin-ny delivers free email summaries of significant decisions of the New York Court of Appeals to New York subscribers. And the liibulletin-patent provides summaries of important patent decisions by the U.S. Court of Appeals for the Federal Circuit and Supreme Court, with detailed commentary on some rulings. The summaries are linked to the full text of the decisions, which are on the Georgetown University Law Center and Emory Law School Web sites, and include links to key sources cited in the opinions, including the Patent Act, pertinent regulations, and the Manual of Patent Examining Procedure.
West Coast practitioners are also well served by e-mail bulletins. For example, Willamette Law School in Salem, Oregon, publishes summaries of new cases as they are issued by the U.S. Supreme Court and by courts throughout the region. From the law school's Web site, researchers can subscribe to individual bulletins summarizing rulings of the U.S. Supreme Court, the U.S. Court of Appeals for the Ninth Circuit, the Oregon Supreme Court, Oregon Court of Appeals, and the state supreme courts of Alaska, California, and Washington.
Not all regions are so fortunate, but many law schools are beginning to provide e-mail notices of important cases.
There are no more excuses not to plug into online research. If you are confused or overwhelmed, start with a free Web directory. Many such directories organize the Web for lawyers--for example, Findlaw.com or LLRX.com, the Law Library Resource Exchange compendium of court rules, forms, and dockets, designed specifically for litigators. Get comfortable with the structure of at least one directory and follow some of its links to find the resources most relevant to your practice.
No matter how proficient you are at book research, you owe it to yourself and your clients to investigate Web-based tools. If you choose the right combination of print and electronic resources for each research project, you'll build a more persuasive case.
Computer research checklist
1. Update the status of cited precedent just before filing a major brief or presenting oral argument. Options include Lexist at lexis.com and Westlaw at westlaw.com.
2. Identify opinions or articles referencing your key cases. Try Shepard's at lexis.com, KeyCite at westlaw.com, and GlobalCite at lioslaw.com.
3. Find cases containing discussions similar to representative language in your strongest case. Options include: Lexis's "More Like Selected Text" and Westlaw's "natural language" searching.
4. Save your best search and have it run periodically to trigger e-mail bulletins flagging any new court opinion addressing your legal issues. Options include: Lexis Eclipse at lexis.com, WestClip at westlaw.com, and LOIS LawWatch at loislaw.com.
5. Monitor the court dockets of your cases and even track new suits filed against your opponent. Options include CaseStream Alert at courtlink.com.
6. Conduct full historical searches in a court-docket database to learn about your judge. Options include CaseStream Historical at courtlink.com.
7. Obtain sample of winning briefs in similar cases and situations. Options include CaseStream Historical and its links to independent document delivery companies at courtlink.com and courtexpress.com for access to state and federal dockets and document retrieval services.
8. Access free or inexpensive Supreme Court and appellate briefs. Options include Findlaw Supreme Court Center at supreme.lp.findlaw. com/Supreme_Court/resources.html; government briefs from the U.S. Department of Justice, Office of the Solicitor General, at www.usdoj.gov/ osg/briefs/search.html; and briefs from federal appellate courts and the U.S. Supreme Court at briefserve.com for $25 per brief, based on a minimum of two.
9. Subscribe to free e-mail bulletins that flag new appellate rulings in your jurisdiction. Options include Legal Information Institute of Cornell Law School bulletins at law. cornell.edu/ focus/bulletins.html and Willamette Law Online! sponsored by Willamette University College of Law at willamette. edu/wucl/wlo.
10. Get started with a Web directory of legal resources. Options include: Findlaw at findlaw.com and LLRX court rules, forms, and dockets at llrx.com/ courtrules.
Kerry L. Adams is associate general counsel for the National Treasury Employees Union in Washington, D.C., and a certified trainer for Courtlink's CaseStream. The views expressed in this article are the author's and do not constitute an endorsement of any product by TRIAL or ATLA. [c] 2002, Kerry L. Adams.
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|Author:||Adams, Kerry L.|
|Date:||Aug 1, 2002|
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