NewsFlash: Westlaw is Fallible!
posted by Amanda Frost
Like many lawyers, I rely heavily on Westlaw and other electronic databases for research. So I was disturbed to discover that Westlaw had failed to note some pretty important developments in a case I had been litigating — omissions that may have affected the way other courts view the issue.
The case is Peoples v. CCA, which I have discussed in a previous post. My petition for rehearing en banc was granted on December 22, 2005, but Westlaw failed to note that information in either a yellow flag or in the history link. I called Westlaw to report that problem as soon as I noticed it in late January, and Westlaw fixed it quickly by attaching a yellow flag to the case and noting that en banc review had been granted. In the meantime, however, the Fourth Circuit had already cited to the panel opinion as supporting its view of the issue, apparently unaware that the Tenth Circuit had agreed to rehear the case en banc. (Though in fairness I do not believe that information would have changed the Fourth Circuit’s mind).
Then the en banc court issued a per curiam opinion in which it affirmed the district court by an evenly divided vote, which vacated the panel opinion. Westlaw has failed to note this change in the panel opinion’s status, despite the two telephone calls I have already made reporting this problem. And courts continue to cite the panel opinion as if it is good law.
No system of recording cases and their histories is failsafe, and I think that Westlaw and Lexis both do a pretty good job most of the time. I certainly don’t have a better system to propose. But this citation error makes me realize how heavily we all rely on electronic databases for our information about case law, and how one mistaken citation can affect a rapidly developing area of the law.
August 16, 2006 at 9:34 am
Posted in: Law Practice
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Responses (6)
Michael Risch - August 16, 2006 at 10:33 am
While Lexis and Westlaw were trying to sell us when I was in charge of this in practice, the Lexis Shepard’s database was their big selling point, and the salesman kept pushing the fact that KeyCite was often wrong.
I would be interested to hear whether Lexis had the right data in this case.
Thaddeus Pope - August 16, 2006 at 12:26 pm
I recall several large multistate research projects that I conducted at Arnold & Porter, where we noticed that Westlaw was often missing information on stages in appellate proceedings that did not result in written opinions (e.g. petitions for rehearing). We ended up pulling the PACER reports for all the federal cases to “double-check” Weestlaw. Perhaps this is better now that they import dockets.
Scott Moss - August 16, 2006 at 5:03 pm
I once asked Westlaw to correct a flagging, and they responded quickly in that situation too. Westlaw inaccurately posted a yellow flag on a case that was one I “won” (on a motion, not a whole case). I was offended at the mistreatment of my baby, so I called them; they looked into it quickly and agreed (it was clear that “my” case had not in fact been criticized/questioned/etc. by the case under the “yellow flag” header), and they fixed it promptly.
Ultimately, no system like this is perfect, so I walked away impressed that they respond so quickly to reports of errors. The evil mad scientist in me wants to make a false “report” of an “error” (e.g., falsely disputing a yellow flag on a case that really does deserve it), just to see if they promptly give in all the time — but I guess I’m either insufficiently evil or insufficiently intellectually curious.
Amanda Frost - August 16, 2006 at 6:23 pm
Michael,
Lexis got it right (or close enough, anyway). So perhaps Lexis is better at this than Westlaw.
Amanda
Michael Risch - August 16, 2006 at 11:34 pm
No surprise there – that’s the core of the Shepard’s business.
Randall Carreira - January 21, 2007 at 1:18 pm
My issues with Westlaw are not so “ivory tower”.
They sent be a $34,000.00+ bill claiming I utilized search engines all over the country.
My paralegal claims differently and everyone I talked to at Westlaw sympathizes but does not have any authority to deal with it. I indicated to them all the printouts were within my service plan, etc. and that my paralegal claims to have never seen any warning charge screens that would indicate an out of service data base was triggered. Westlaw takes the position that since they program the screens, they must be there, they do not care if I did not use the data bases, their information is correct and guess what, they will put me in collections if I do not pay $24,000.00 immediately.(They were “gracious” enough to give me a $10,000.00 credit). I may just pay “under protest” and take action later.
Does anyone else have these problems?
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