The New Legal Research: Did the Mouse Devour the Law Books?
by Scott Wood
(County Bar Update, November 2007, Vol. 27, No. 10)

 

The New Legal Research: Did the Mouse Devour the Law Books?

 

Before beginning to write, prudence indicates a fresh look at the big picture

 

By Scott Wood, clinical professor, Loyola Law School, Los Angeles. Wood offers writing workshops for litigators and one-on-one consultations. He can be reached at Scott.Wood@LLS.edu.

 

Dr. Johnson, who produced the first English dictionary, observed that we have two kinds of knowledge: that which we know and that which we know how to find. Most lawyers may take pride in knowing the language of the law, at least in their practice areas, but they humbly admit that they don’t know every word. But the last word, the most recent case or amended statute, is just a mouse-click away. Most lawyers may have learned the law from books, including Black’s specialized successor to Dr. Johnson’s tome, but now it seems that everything is online. No more need for heavy lifting.

 

Recently, I found myself wondering whether legal research has become book-free. The word on the street is that a growing number of practitioners do all their research online. No doubt, Westlaw and Lexis continue investing enormous sums in building seemingly bottomless data banks. Why bother with a law book?

 

I suppose I could have found the answer online, but instead I asked Dan Martin, Loyola’s law librarian and editor of Henke’s California Law Guide.1 Let me be quick to say that Dan is no enemy of computers; when we had our chat, he was not wearing a green eyeshade with garters on his sleeves. Dan oversees a computer lab, administers a dozen legal research classes that include online research instruction, and uses computer-assisted legal research (CALR) every day. Dan exults on record (in a book, of course) that “I love all the new digital databases. I look forward to more and more digital information.”2 Indeed, as a professor of professional responsibility, Dan points out that to submit a brief or a motion without first cite-checking online is legal malpractice. So, what about those law books?

 

Some CALR trips and traps. First, exclusive reliance on CALR may also court legal malpractice or, less seriously, impair client relations. Dan warns against the “comprehensive research delusion.” Although the data banks for court opinions are marvelously up-to-the-minute, not so statutes, administrative regulations, and other legislative materials. Moreover, formulating a precise search for such materials is extremely difficult. A “natural language” sweep of codes, for example, usually produces data-overload with the accompanying inefficiency and confusion.

 

Next, CALR can be inordinately expensive. Unless the firm can negotiate a flat rate (in fairness to the service providers, most can), unproductive online research can’t be billed. If it is, sophisticated clients will rightly object, and client relations take a hit. The ethical dilemma of whether to foist on the client the cost of wasted CALR is too common. It is much easier to simply adjust the billable hours spent with the books.

 

Books are often best. Major research projects can be initially attacked more efficiently with law books. Unless the lawyer already possesses exhaustive knowledge of the area, prudence dictates a fresh look at the big picture. Dan notes that the Loyola Law Library houses over 600,000 books; more than 100,000 of them are legal treatises. A legal treatise is usually the first place to look for the big picture. But only about 15 percent of legal treatises are online. And even if the treatise is online, it is simply more efficient to physically flip through a book’s table of contents, index, and relevant text than to manipulate multiple computer screens. Again, with comparatively few treatises even available online, books are better.

 

The same efficient handling also applies to annotated codes, often the best book for connecting all the dots: the statute, interpretive and controlling case law, secondary sources, related statutes, and other enacted law. As Dan wisely notes, books are not only convenient, they are permanent. I suspect that a huge number of practitioners still open Witkin before they start clicking a mouse. Witkin first, then the mouse. Makes good sense.

 

The answer? No, the mouse has not devoured the law books. Indeed, the contemporary law library accommodates and combines the best of both CALR and books. Moreover, my friend Dan maintains that physical libraries are not only here to stay, they are sanctuaries. He quotes his colleague, Nancy Kalikow Maxwell: “Patrons (and staff members) feel safe there. Libraries are places of learning. They are places of meditating. They are places of exploring. They are places of communicating. They are places of meeting.” 3 They are places where competent lawyers move efficiently between books and laptops.

 

1 HENKE'S CALIFORNIA LAW GUIDE (Daniel W. Martin ed., 8th ed. 2006).

 

2 Id. at xxxi.

 

3 Id. at xxxii.

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