KEEPING BOOKS ON THE HORIZON: TEACHING LEGAL RESEARCH TO THE GOOGLE GENERATION

KEEPING BOOKS ON THE KEEPING BOOKS ON THE HORIZON: TEACHING LEGAL HORIZON: TEACHING LEGAL RESEARCH TO THE GOOGLE RESEARCH TO THE GOOGLE

GENERATIONGENERATION

IAN GALLACHERIAN GALLACHER

SYRACUSE UNIVERSITYSYRACUSE UNIVERSITY

COLLEGE OF LAWCOLLEGE OF LAW

GENERAL DECLINE IN BOOK GENERAL DECLINE IN BOOK READINGREADING

•• In 1992, 60.9% Of Population Read At In 1992, 60.9% Of Population Read At Least Least One BookOne Book

•• In 2002, 56.6% Of Population Read At In 2002, 56.6% Of Population Read At Least Least One BookOne Book

•• In 1992, 54.0% Of Population Read At In 1992, 54.0% Of Population Read At Least Least One Book Of LiteratureOne Book Of Literature•• In 2002, 46.7% Of Population Read At In 2002, 46.7% Of Population Read At Least Least One Book Of Literature One Book Of Literature Reading At Risk: A Reading At Risk: A

Survey Of Survey Of Literary Reading In America, at ix National Endowment For The Literary Reading In America, at ix National Endowment For The Arts Research Arts Research Division Report # 46 (June 2004)Division Report # 46 (June 2004)

GENERAL DECLINE IN BOOK GENERAL DECLINE IN BOOK READINGREADING

•• Between 1982 And 1992, Decline For Between 1982 And 1992, Decline For Literary Reading Was 2.9%Literary Reading Was 2.9%

•• Between 1992 And 2002, Decline For Between 1992 And 2002, Decline For Literary Reading Was 7.3%Literary Reading Was 7.3%

•• In 18-24 Year Olds, Only 42.8% Engage In In 18-24 Year Olds, Only 42.8% Engage In Literary Reading, Decline Of 28% In Last Literary Reading, Decline Of 28% In Last

20 20 YearsYears•• ““[A]t the current rate of loss, literary [A]t the current rate of loss, literary reading reading as a leisure activity will virtually as a leisure activity will virtually disappear in disappear in half a century.” half a century.” NEA Report at x-xiiiNEA Report at x-xiii

OUR STUDENTSOUR STUDENTS

•• 72% Use Internet More Than Library72% Use Internet More Than Library

•• 16% Use Internet And Library About The 16% Use Internet And Library About The SameSame

•• 9% Use Internet Less Than Library9% Use Internet Less Than Library

•• 2% Don’t Know2% Don’t Know Pew Internet & American Life Project: Pew Internet & American Life Project:

College Students Survey (2002) (margin of error ± 3.5%)College Students Survey (2002) (margin of error ± 3.5%)


During direct observations of college students’ use of During direct observations of college students’ use of the Internet in a library and in campus computer labs, the Internet in a library and in campus computer labs, it was noted that the majority of students’ time was not it was noted that the majority of students’ time was not spent using the library resources online. Rather, email spent using the library resources online. Rather, email use, instant messaging and Web-surfing dominated use, instant messaging and Web-surfing dominated students[’] computer activity in the library. Almost students[’] computer activity in the library. Almost every student that was observed checked his or her every student that was observed checked his or her email while in the computer labs, but very few were email while in the computer labs, but very few were observed surfing university-based or library Web sites. observed surfing university-based or library Web sites. Those students who were using the computer lab to Those students who were using the computer lab to do academic-related work made use of commercial do academic-related work made use of commercial search engines rather than university and library Web search engines rather than university and library Web sites. sites. Id.Id.


•• 1991-2:1991-2: 260,000 books reshelved260,000 books reshelved

•• 1991-2:1991-2: 3.1 million photocopies3.1 million photocopies

•• 2001-2:2001-2: 85,000 books reshelved85,000 books reshelved

•• 2001-2:2001-2: 880,000 photocopies880,000 photocopies


•• 94% Of Teens Have Used Internet For 94% Of Teens Have Used Internet For School Research School Research

•• 71% Of Teens Have Used Internet As 71% Of Teens Have Used Internet As Major Major Source For Recent School Project Source For Recent School Project Pew Pew Internet & American Life Project: Teenage Life Online Internet & American Life Project: Teenage Life Online

(2001)(2001)


The Internet Has Had A Positive Impact On My The Internet Has Had A Positive Impact On My College Experience In General:College Experience In General:

•• Strongly Agree:Strongly Agree: 34.3%34.3%

•• Agree:Agree: 44.2%44.2%

•• Neutral:Neutral: 16%16%

•• Disagree:Disagree: 3%3%

•• Strongly Disagree:Strongly Disagree: 0.5%0.5%

•• Don’t Know/Not Sure:Don’t Know/Not Sure: 2% 2% Pew Pew College Student SurveyCollege Student Survey


I Use The Internet Most Often To:I Use The Internet Most Often To:

•• Communicate Socially:Communicate Socially: 42%42%

•• Engage In Work For Classes:Engage In Work For Classes: 38%38%

•• Be Entertained:Be Entertained: 10%10%

•• Communicate Professionally:Communicate Professionally: 7%7%

•• Don’t Know/Not Sure:Don’t Know/Not Sure: 2% 2% Id.Id.

WHO SHOULD TEACH LEGAL WHO SHOULD TEACH LEGAL RESEARCHRESEARCH

•• Legal Writing Teachers Should Teach Legal Writing Teachers Should Teach Legal Legal Research As WellResearch As Well

•• If Possible, Team-Teach With Librarians If Possible, Team-Teach With Librarians To To Avail Students Of Expertise Avail Students Of Expertise

•• Vendors Should Have No Role In Primary Vendors Should Have No Role In Primary Teaching Of Electronic DatabasesTeaching Of Electronic Databases

WHEN SHOULD WE TEACH WHEN SHOULD WE TEACH RESEARCHRESEARCH

•• If Possible, After Students Have Had Solid If Possible, After Students Have Had Solid Grounding In Rule Derivation And Legal Grounding In Rule Derivation And Legal

RhetoricRhetoric

•• If Possible, Research Is Best Taught As If Possible, Research Is Best Taught As Complete Unit, Not PiecemealComplete Unit, Not Piecemeal

•• Book And Electronic Research Should Be Book And Electronic Research Should Be Taught Simultaneously, Not SeparatelyTaught Simultaneously, Not Separately

WHERE SHOULD WE TEACH WHERE SHOULD WE TEACH RESEARCHRESEARCH

•• If Possible, Best to Teach Research In If Possible, Best to Teach Research In The The LibraryLibrary

•• Allows Immediate Access To BooksAllows Immediate Access To Books

•• Makes Library Less Threatening To Makes Library Less Threatening To Students Unfamiliar With Book-Based Students Unfamiliar With Book-Based ResearchResearch

HOW SHOULD WE TEACH HOW SHOULD WE TEACH LEGAL RESEARCHLEGAL RESEARCH

•• Integrated With Writing AssignmentsIntegrated With Writing Assignments

•• Integrated With Doctrinal ClassesIntegrated With Doctrinal Classes

•• Using Exercises To Familiarize Students Using Exercises To Familiarize Students With LibraryWith Library

•• Using Self-Created, Not Published Using Self-Created, Not Published ExercisesExercises

WHAT SHOULD WE TEACHWHAT SHOULD WE TEACH

•• Book-Based Legal ResearchBook-Based Legal Research

•• Lexis and WestlawLexis and Westlaw

•• Low Cost And No Cost Electronic Low Cost And No Cost Electronic AlternativesAlternatives

-- FindlawFindlaw

-- LoislawLoislaw

-- Legal Information InstituteLegal Information Institute

-- Hein OnlineHein Online

•• Introduction To Lawyering CultureIntroduction To Lawyering Culture

BAD EXPLANATIONS FOR BOOK-BAD EXPLANATIONS FOR BOOK-BASED RESEARCHBASED RESEARCH

•• ““I Know What’s Best For You.”I Know What’s Best For You.”

•• ““I Had To Do It So You Have To Do It.”I Had To Do It So You Have To Do It.”

•• ““Books Are Better For Legal Research.”Books Are Better For Legal Research.”

•• ““Book-Based Research Will Make Your Book-Based Research Will Make Your Electronic Research More Efficient.”Electronic Research More Efficient.”

EFFECTIVE EXPLANATIONS FOR EFFECTIVE EXPLANATIONS FOR BOOK-BASED RESEARCH BOOK-BASED RESEARCH

•• Emphasize Process Over MethodEmphasize Process Over Method

•• Stress Value Of Electronic Research In Stress Value Of Electronic Research In Certain AreasCertain Areas

•• Explain Why Electronic Research Can Explain Why Electronic Research Can Cause ProblemsCause Problems

•• Explain Why Lawyering Culture Is Still Explain Why Lawyering Culture Is Still Uncertain About Electronic ResearchUncertain About Electronic Research

•• Explain Professional Benefits To Being Explain Professional Benefits To Being Effective Book ResearchersEffective Book Researchers

PROCESS OVER METHODPROCESS OVER METHOD

•• Familiar Secondary Source To Primary Familiar Secondary Source To Primary Source ProcessSource Process

•• Possible To Accomplish Using Just Books Possible To Accomplish Using Just Books Or Just ComputerOr Just Computer

•• Computer Searching Of Secondary Computer Searching Of Secondary Sources Sources Not As Easy Using Computers?Not As Easy Using Computers?

•• Combination Of Book And Computer Combination Of Book And Computer Research Is Probably Most Efficient ProcessResearch Is Probably Most Efficient Process

VALUE OF ELECTRONIC VALUE OF ELECTRONIC RESEARCHRESEARCH

•• Unparalleled In Some Areas Like Unparalleled In Some Areas Like ShepardizingShepardizing

•• Document Retrieval Is Much Faster Than Document Retrieval Is Much Faster Than BooksBooks

•• Ability To Locate Specific Terms And Ability To Locate Specific Terms And Concepts In Long OpinionsConcepts In Long Opinions

•• Allows Research In Ways Previously Not Allows Research In Ways Previously Not PossiblePossible

PROBLEMS OF ELECTRONIC PROBLEMS OF ELECTRONIC RESEARCHRESEARCH

•• Electronic Researcher Is Indexing Electronic Researcher Is Indexing Reporter Reporter Without Having Read CasesWithout Having Read Cases

•• Electronic Researcher Is Limited To Electronic Researcher Is Limited To Retrieval Of Entered Terms: Synonyms Retrieval Of Entered Terms: Synonyms Only Only Searched If EnteredSearched If Entered

•• Electronic Research Minimizes SerendipityElectronic Research Minimizes Serendipity

•• Electronic Research Limited By Scope Of Electronic Research Limited By Scope Of DatabaseDatabase

•• Electronic Research Breeds Electronic Research Breeds OverconfidenceOverconfidence


In text retrieval such as that performed by In text retrieval such as that performed by lawyers in Lexis and Westlaw, “increased recall lawyers in Lexis and Westlaw, “increased recall is gained only at the expense of a loss of is gained only at the expense of a loss of precision, and vice versa.”precision, and vice versa.”

Jon Bing, Jon Bing, Performance of Legal Text Retrieval Systems: The Performance of Legal Text Retrieval Systems: The Curse of BooleCurse of Boole, 79 Law. Lbr. J. 187, 196 (1987), , 79 Law. Lbr. J. 187, 196 (1987), quoted inquoted in, , Christopher G. Wren & Jill Robinson Wren, Christopher G. Wren & Jill Robinson Wren, Using Computers Using Computers in Legal Research: A Guide to Lexis and Westlawin Legal Research: A Guide to Lexis and Westlaw (“Wren & (“Wren &

Wren”) at 767 (1994).Wren”) at 767 (1994).


““[S]uppose a database of 1,000 documents contains [S]uppose a database of 1,000 documents contains 100 documents you would consider relevant to your 100 documents you would consider relevant to your research problem. If your search request retrieves 60 research problem. If your search request retrieves 60 of these 100 relevant documents, the recall of these 100 relevant documents, the recall measurement for your request would be 60 percent. If measurement for your request would be 60 percent. If your search request also retrieves 180 irrelevant your search request also retrieves 180 irrelevant documents along with the 60 relevant documents … documents along with the 60 relevant documents … the precision measurement for your search request the precision measurement for your search request would be 25 percent – that is, 60 relevant documents would be 25 percent – that is, 60 relevant documents out of 240 retrieved documents. Thus your search out of 240 retrieved documents. Thus your search request would have a relatively high level of recall request would have a relatively high level of recall (retrieving 6 out of every 10 potentially relevant (retrieving 6 out of every 10 potentially relevant documents) and a relatively low level of precision (with documents) and a relatively low level of precision (with only one out of every four documents retrieved being only one out of every four documents retrieved being relevant.)” relevant.)” Wren & Wren, at 769. Wren & Wren, at 769.


•• 1985 Study To Evaluate Success Of 1985 Study To Evaluate Success Of Research in 350,000 Page Database.Research in 350,000 Page Database.

•• Researchers Studied Were Familiar With Researchers Studied Were Familiar With Contents Of Database.Contents Of Database.

•• Search Considered “Successful” When Search Considered “Successful” When Subject Concluded 75% Of Relevant Subject Concluded 75% Of Relevant Documents Had Been Recovered.Documents Had Been Recovered.


•• Researchers Had High Level Of Precision (79 of Researchers Had High Level Of Precision (79 of every 100 documents retrieved were relevant)every 100 documents retrieved were relevant)

•• But Only 20 Of Every 100 Relevant Documents But Only 20 Of Every 100 Relevant Documents Were Retrieved – 20% Instead Of The Were Retrieved – 20% Instead Of The

Perceived Perceived 75%. David C. Blair & M.E. Maron, 75%. David C. Blair & M.E. Maron, An An Evaluation Evaluation of Retrieval Effectiveness for a Full-Text of Retrieval Effectiveness for a Full-Text

Document-Retrieval SystemDocument-Retrieval System, 20 Comm. Ass’n. , 20 Comm. Ass’n. Computing Machinery 289 (1985), Computing Machinery 289 (1985), quoted inquoted in, , Wren & Wren, at 769. Wren & Wren, at 769.


Information RetentionInformation Retention

•• Link RotLink Rot

•• Information CullingInformation Culling

•• Depublished Opinions and Depublished Opinions and Superseded StatutesSuperseded Statutes


Information AvailabilityInformation Availability

•• Denial of Service AttacksDenial of Service Attacks

•• Internet Service DisruptionInternet Service Disruption

•• ExpenseExpense

LAWYERING CULTURELAWYERING CULTURE

Students More Willing To Learn Book Research Students More Willing To Learn Book Research If They Understand That Electronic Research Is If They Understand That Electronic Research Is Not Always Part Of The Lawyering Culture:Not Always Part Of The Lawyering Culture:

•• Some Lawyers Suspicious Of ResultsSome Lawyers Suspicious Of Results

•• Some Clients Won’t Pay For ItSome Clients Won’t Pay For It

•• Some Law Offices Won’t Make It AvailableSome Law Offices Won’t Make It Available

•• Even If Available, Large Bill For Electronic Even If Available, Large Bill For Electronic ResearchResearch Can Hurt Employment Chances Can Hurt Employment Chances

LAWYERING CULTURELAWYERING CULTURE

•• Introduction To Cost Of Legal Research Introduction To Cost Of Legal Research Explains Premium Employers Place On Explains Premium Employers Place On EfficiencyEfficiency

•• Explains Pressures Under Which Law Explains Pressures Under Which Law Firms, Firms, And The Lawyers In Them, OperateAnd The Lawyers In Them, Operate

•• Gives Students Perception Of How Their Gives Students Perception Of How Their Work Might Be EvaluatedWork Might Be Evaluated

•• Helps Students To Take Legal Research Helps Students To Take Legal Research SeriouslySeriously

ECONOMICS OF LEGAL ECONOMICS OF LEGAL RESEARCHRESEARCH

Value Of United States Legal Information Value Of United States Legal Information Market:Market:

•• In Excess Of $5 Billion Per YearIn Excess Of $5 Billion Per Year

•• Growing At Annual Rate Of 5% Per Growing At Annual Rate Of 5% Per Year Year JP Morgan Securities Ltd, Equities Research, JP Morgan Securities Ltd, Equities Research, US US

Legal Legal Publishing Industry: A Growth Story?, 3 Publishing Industry: A Growth Story?, 3 (2002).(2002).


Three Corporations Control 80% Of Market:Three Corporations Control 80% Of Market:

•• Thompson Corporation:Thompson Corporation: 38%38%

•• Reed Elsevier:Reed Elsevier: 27%27%

•• Wolters Kluwer:Wolters Kluwer: 15% 15% Id.Id.


Where Our Students Will Work:Where Our Students Will Work:

•• Private Practice:Private Practice: 74%74%

•• Private Industry:Private Industry: 8%8%

•• State/Local Government:State/Local Government: 5%5%

•• Retired/Inactive:Retired/Inactive: 5%5%

•• Other:Other: 5%5%•• Federal Government:Federal Government: 3% 3% Id.Id.

Number of Attorneys in Private Practice Firm

Percentage

101+ 1

51-100 1

21-50 3

11-20 6

6-10 13

5 6

4 10

3 19

2 41 Id.


ACCOUNTING FOR THE COST ACCOUNTING FOR THE COST OF LEGAL INFORMATIONOF LEGAL INFORMATION

Cost Of Maintaining Physical Library:Cost Of Maintaining Physical Library:

•• Single-State Practice In Small State:Single-State Practice In Small State:

$18,000 - $63,000 In Start-Up Costs and $18,000 - $63,000 In Start-Up Costs and $30,000 In Supplementation Costs$30,000 In Supplementation Costs

•• Other Materials Such As Loose Leaf Other Materials Such As Loose Leaf Services, Treatises, Bar Publications, And Services, Treatises, Bar Publications, And Books Will Increase CostsBooks Will Increase Costs

•• Cost Of Physical Space To House Cost Of Physical Space To House CollectionCollection


Although Numbers Will Fluctuate In Different Although Numbers Will Fluctuate In Different Parts Of Country And Depending On Firm Parts Of Country And Depending On Firm Practice, Not Unreasonable To Assume Practice, Not Unreasonable To Assume Physical Library Represents $100,000 Per Year Physical Library Represents $100,000 Per Year In Overhead CostIn Overhead Cost


Law Firms Recover Cost Of Legal Information Law Firms Recover Cost Of Legal Information In Two Ways:In Two Ways:

•• Direct Charge for ServiceDirect Charge for Service

•• Recovered Billing For AttorneysRecovered Billing For Attorneys


•• Library Expenses Are Overhead Costs Library Expenses Are Overhead Costs Factored Into Billing Rates And Are Factored Into Billing Rates And Are Recovered As Part Of Monthly Billing CycleRecovered As Part Of Monthly Billing Cycle

•• Electronic Database Expenses Typically Electronic Database Expenses Typically Have Been Broken Out By Client And Have Been Broken Out By Client And

Were Were Billed As Separate Charges In Billed As Separate Charges In Addition To Addition To Attorney TimeAttorney Time


Treating Legal Research As Cost Item Can Treating Legal Research As Cost Item Can Cause Problems:Cause Problems:

““It is well settled that computer aided research, It is well settled that computer aided research, ‘like any other form of research, is a component ‘like any other form of research, is a component of attorney’s fees and cannot be independently of attorney’s fees and cannot be independently taxed as an item of costs.’” taxed as an item of costs.’” Ryther v. KARE IIRyther v. KARE II, , 864 F.Supp. 1525, 1534 (D.Minn. 1994), 864 F.Supp. 1525, 1534 (D.Minn. 1994), quotingquoting, , Leftwich v. Harris-Stowe State Leftwich v. Harris-Stowe State CollegeCollege, 702 F.2d 686, 695 (8th Cir. 1983). , 702 F.2d 686, 695 (8th Cir. 1983).


Other Courts Have Been More Sympathetic:Other Courts Have Been More Sympathetic:

In re Cedant Corp., Derivative Action LitigationIn re Cedant Corp., Derivative Action Litigation, , 232 F.Supp. 2d 327, 344 (D.N.J. 2002), Permits 232 F.Supp. 2d 327, 344 (D.N.J. 2002), Permits Recovery Of Computer Research As Element Recovery Of Computer Research As Element Of Costs.Of Costs.


Flat Rate Billing By Westlaw And Lexis Can Flat Rate Billing By Westlaw And Lexis Can Mask Hidden Dangers:Mask Hidden Dangers:

•• Flat Rates Can Encourage Unlimited UseFlat Rates Can Encourage Unlimited Use

•• Westlaw And Lexis Still Track Use CloselyWestlaw And Lexis Still Track Use Closely

•• Flat Rate Renegotiated Fee Based On Flat Rate Renegotiated Fee Based On Past Past UsageUsage


•• Require Students To Maintain Timesheets Require Students To Maintain Timesheets

•• Introduces Students To Concept Of Introduces Students To Concept Of Keeping Keeping Track Of TimeTrack Of Time

•• Serves As Research LogServes As Research Log

•• Gives You Early Warning Of Inefficient Gives You Early Warning Of Inefficient Research HabitsResearch Habits

•• Can Be Used To Determine How Much Can Be Used To Determine How Much Time Time Students Really Spend Working On Students Really Spend Working On Legal Legal Research And Writing AssignmentsResearch And Writing Assignments

CONCLUSIONCONCLUSION

•• Teaching Students About Problems With Teaching Students About Problems With Electronic Research, Both Technical And Electronic Research, Both Technical And Cultural, Can Explain Why Books Remain Cultural, Can Explain Why Books Remain Viable OptionViable Option

•• Teaching Process Rather Than Medium Teaching Process Rather Than Medium Promotes Efficient Research SkillsPromotes Efficient Research Skills

•• Explaining Professional Benefit To Being Explaining Professional Benefit To Being Effective Book Researcher Can Motivate Effective Book Researcher Can Motivate Students To Overcome Mistrust Of BooksStudents To Overcome Mistrust Of Books

KEEPING BOOKS ON THE HORIZON: TEACHING LEGAL RESEARCH TO THE GOOGLE GENERATION

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