Shelly Albaum is Vice President of Primary Law Development at West.
A decision by the Minnesota Supreme Court rocked the legal world. The court ruled that a contract transmitted via a new electronic technology was as valid as traditional written or handshake contracts. The decision threatened to disrupt usage of this promising new technology.
Did the case involve e-mail? Instant messaging? Hardly. The year was 1876 when Minnesota Linseed Oil Co. v. Collier White Lead Co. set a major precedent on the use of a still emerging technology, the telegraph. And the best, fastest way at the time to learn about the case was a thin eight-page newsletter called The Syllabi, the forerunner of the National Reporter System®, which this year celebrates its 125th anniversary.
The emergence of written volumes comprising key court decisions was no less than a revolution in legal research. The impact and benefits are still with us today. Legal research is such an integral part of the practice of law that we often may be tempted to take its existence and development for granted.
The anniversary of the National Reporter System is an excellent chance to take a short pause to reflect on the evolution of legal research, and peer into what the future holds.
The Age of Information
One hundred and twenty-five years ago, legal research was practically in the Paleozoic Era. The nation was still emerging from Reconstruction and struggling to establish a uniformly effective judicial system. But the system was severely hampered by a lack of effective legal research tools.
Court decisions often took months or even years to be published. Courts would sometimes wait until they had amassed a sufficient volume of new decisions to justify printing additional volumes. When decisions were finally published, they often were riddled with errors from grammatical to procedural. Worse, cases were not indexed and could not be cross-referenced. This hodge-podge of case law was untenable to a growing country’s judicial system bound by legal precedents.
John B. West’s development of the National Reporter System was nothing less than revolutionary. For the first time, attorneys could review court decisions in a timely fashion. West worked with the courts to correct any errors, improving the accuracy of legal research.
By 1887, the National Reporter System provided comprehensive coverage of federal and state appellate cases. A process was set in motion that would soon deliver the world’s first editorial enhancements to court decisions. West attorney-editors began writing case synopses and headnotes, adding legal terms that were not used in the original court decision. These editorial enhancements provided a powerful tool that enabled researchers to quickly understand the opinion without having to read it from first page to last.
“The National Reporter System brought order out of chaos,” said Arthur Miller, Harvard Law School professor. “Without it, across the crazy quilt of the United States’ developing legal system, there was simply no way for a lawyer to find the law.” The print volumes of the National Reporter System allowed the U.S. legal system to fulfill its promise of equal justice under law, applied in a timely and consistent manner based on court precedents.
The National Reporter System systematized legal publishing, enabling attorneys and researchers to quickly find and analyze cases knowing the cases were edited, corrected and correlated. It was not long after that West invented the Key Number System®, which is still the only index for classifying American law.
This systematic approach to case law publishing laid the groundwork for the next revolution.
The Age of Technology
Fast forward to 1975. What would become the Internet was still a fledgling Defense Department network called ARPANET. And the predecessor of America Online was just a local electronic bulletin board. Legal research underwent a fundamental revolution that year when Westlaw® went online. The application of electronic technologies to the information contained in Westlaw allowed users to do three things that had previously been impossible.
First, access to the information was no longer dependent on the availability of the physical document. It no longer mattered if someone else in the office was already using a particular volume of the Federal Reporter®.
The ability to search for information was enhanced through the ability to conduct keyword searches. Users could link relevant cases through disparate or peculiar terms or word patterns. By searching under “PCBs,” you could find cases ranging from product liability to toxic torts.
Westlaw also introduced the ability to conduct massive searches at incredible speed. One can literally search the entire content of the National Reporter System in a matter of seconds. West’s editorial enhancements and Key Number System became even more powerful. They enabled researchers to find more cases relevant to their legal issue, with the confidence they were on-point.
But the technology revolution represented by Westlaw by no means instantly outdated all that had come before it. It improved the ability to search the information of the National Reporter System.
Electronic research possesses many unique attributes – for example, one can find more information that is relevant faster than one can with print volumes. An online search using key numbers is a highly efficient means of finding relevant legal information.
But research using print resources still holds significant advantages. Beyond the tactile pleasure of physically holding a book, print still offers superior readability. For example, it is relatively easy to open several print volumes and lay them side-by-side on the law library table to compare different cases and to cross-reference parallel resources. Despite advances in display technologies and software, it is still less effective to compare two documents in the electronic world. Anyone who’s ever tried to view two documents in Word via a split screen or simultaneously look at two browser windows knows the frustrations I’m talking about.
Cindy Curling is one of the founders of the Legal Research Training Focus Group for the Law Librarian’s Society of Washington, D.C. In a May 2001 article, she notes that the most effective research involves a combination of print and electronic attributes. Many younger attorneys who rely more on online research and may be less experienced with print-based research may be conducting searches that are less effective than they could be. “Advanced users,” says Curling, “especially attorneys familiar with headnotes and key numbers from years of experience working with print digests and case law, are more likely to combine the Key Number System with full-text searching to maximize their online advantage.”
The next phase of the revolution will be greater seamless integration of print and online research. The goals are to marry the attributes of online research – timeliness, keyword searches, availability, etc. – with the virtues of print volumes, such as greater browseability, readability and indexing capabilities. Future legal research will capture the best attributes of both.
New West Reporter Images functionality, for instance, will provide online access to actual scanned images from print volumes. In an online environment, users will be able to view, store and print actual printed pages. Paginations, footnotes and other formatting can be captured in their original form.
Westlaw is now 27 years old and is the standard for online legal research. As powerful as the service is, future developments will enable researchers to tap enormous, yet heretofore unrealized potential.
The Age of Knowledge
So far, we’ve traveled through 125 years of legal research in a short space here. Let’s take a breather to check our bearings before we rush headlong into more thoughts about the future.
Vast quantities of legal information are now available at our fingertips. Accessing legal information is no longer a limiting factor. The key for the future is as much about managing information as it is finding it.
In their book Working Knowledge, Thomas Davenport and Laurence Prusak discuss that what we often label as information, as in “information technology,” can really be best described as either data, information or knowledge.
Data is a set of discrete, objective facts about events, or unstructured points of fact. For example, someone’s telephone number is a data point. By itself, it is of limited value. It’s only when it can be grouped with other data points, catalogued, indexed and made searchable that it becomes truly useful.
Information is data that is relevant, or as Davenport and Prusak put it, “data that makes a difference.” Data that is contextualized, categorized, calculated, corrected and/or condensed becomes useful information. A telephone directory converts random telephone numbers and street addresses into meaningful and relevant information. The National Reporter System helped transform legal data into legal information. It organized, categorized and systematized legal research. Westlaw made that information more accessible through greater power and speed to find information.
Knowledge, however, is more fluid information. It compares situations against previous experiences, relates otherwise disparate pieces of information, and shares and compares information within an organization. For example, White House telephone operators know from past experience where and how to locate information, enabling them to track down the phone number of anyone in the world.
The accumulated knowledge of an organization is an extremely valuable asset. Former Hewlett-Packard president Lew Platt once said, “if HP knew what HP knows, we’d be three times as profitable.” For a law firm, knowledge is the accumulated experience and expertise of its attorneys and staff. Up to now, legal research has largely been focused outward into case law and precedents. Knowledge management moves the search for information inside the organization as well.
Imagine that when researching a case, the researcher could instantly see all the materials anyone else in the firm had created while working on a similar case. They could call up any document, including depositions, outlines or other working documents. What if those internal documents, no matter when they were created, had highlighted search terms, links to Westlaw and KeyCite® flags alerting the researcher to changes in the law?
Knowledge management systems represent the next revolution in legal research by transforming a firm’s internal knowledge into a far more accessible and useable asset. A firm’s knowledge will be integrated with traditional legal research, producing a more powerful and efficient work product.
The challenges for gathering and using the knowledge of a firm are no less than John B. West’s challenges in developing the National Reporter System. Just as the National Reporter System applied a standardized method for publishing and distributing legal information and the Key Number System provided the framework for indexing court decisions, new knowledge management services such as West km™ enable firms to bring that extensive experience categorizing and organizing legal information and apply it to the firm’s internal documents.
“Everyone in a firm may use slightly different terminology,” says Linda Will, director of the knowledge management for the national law firm Greenburg Traurig. “A document might be called a brief, an appellate brief, or a motion. Metatags can be applied to internal documents, but there are no guidelines or standards for metatags. As librarians, we’ve relied upon rules and standards since the beginning of time, but they’ve been sorely lacking in this area. In addition, we had to rely on our attorneys to apply the metatags to their documents. However, their time would be better spent doing billable work, instead of editing documents for internal filing purposes. The development of knowledge management systems holds the promise of greatly improving firm efficiency and productivity.”
When performing research online, West km simultaneously identifies all relevant internal documents and displays them simultaneously within the Westlaw search results. Moreover, when a Westlaw document is opened, it identifies all firm work product that cites the document being viewed.
“We consume information, but information also consumes us,” says Will. “We currently face a glut of information. But is it the right information? In a sense, we have too much information, but not enough knowledge. The key will be providing the end user with the knowledge that yields the maximum results.”
To that end, the future of legal research and knowledge management largely depends on development of better means of collecting, documenting, cataloguing and distributing information. In many ways, the goals have not changed since John B. West printed the first North Western Reporter® in 1877.
Technology has added powerful tools to the mix, but in many ways is merely a means to an end. It’s about how we apply the technology in a manner that’s both intelligent and intuitive so that it manages information and knowledge to best meet the needs of the user. To use an analogy, it’s not just about building a new magnetic levitation train that’s faster and carries more, it’s about learning which cars to put on the track, what cargo to put in them and where to send them.
Even 125 years after the advent the National Reporter System, the journey continues.