Lately I’ve found myself thinking more than I have for a long time about the process of legal research. This is because of an intriguing article by Ronald E. Wheeler, Jr., the director of the library at the University of San Francisco Law School. Wheeler’s article (which can be found here) discusses Westlaw Next, the new search engine rolled out by Westlaw in 2010. Several features distinguish Westlaw Next from Classic Westlaw; most notably, that Westlaw Next is a sort of “Google for lawyers” because it uses a crowd sourcing algorithm that relies on the actions of other Westlaw users to rank the relevance of documents retrieved in a search. Wheeler’s article is a must-read for anyone who teaches legal research to law students and a should-read for any scholar who uses or has research assistants using Westlaw Next.
Wheeler concludes that Westlaw Next is a “powerful tool that returns more focused results,” but he cautions about several negative effects. Here’s a excerpt that will be of particular interest to academics:
. . . [T]here are certainly times when researchers are looking to find the stone left unturned, the less popular result, the most esoteric tidbit of legal information or the item that has not been viewed, printed, saved or foldered by members of the collective crowd. In fact, particularly in the academic environment, it is often the case that the obscure or less popular results are exactly what are needed. Often academics are doing research to advance their scholarly agenda for publication. It is important in academe to write about unique ideas or concepts, or to approach a topic from a different point of view. This is true because the most popular or most used information has probably already been written about. Legal scholars, therefore, often look for legal oddities, unfamiliar concepts, breaking news, and rulings or decisions that are different from the current state of the law. Legal scholars and creative thinkers also frequently write about changing the law or the effects of proposed changes. Again, these sorts of research inquiries may not fall within the crowd of results considered useful by the masses.
Here’s another excerpt that will be useful to anyone trying to get good research out of young lawyers. Wheeler discusses Westlaw Next’s (in my opinion, eye-popping) pricing structure at length and notes:
Charging to edit or focus searches could result in researchers retrieving less accurate results. When researchers are deterred from refining their searches by using the editing or focusing function, they are likely to merely settle for the results they retrieve from their initial searches. Researchers will settle for these results if they perceive that their initial search results are good enough. The potential costs associated with refining initial searches, without any real guarantee of better results, may cause researchers to accept any result that they perceive as adequate. Especially in this time of hyper cost consciousness in law firms and other practice environments, researchers will likely err on the side of frugality and sacrifice some portion of research accuracy.
Initiating the practice of charging a fee for each opened document will discourage researchers from opening and reading documents. It will cause researchers to examine fewer documents and discover less information. WestlawNext’s new pricing structure creates a strong economic disincentive for researchers to open and peruse numerous documents. Opening, skimming, and even reading portions of numerous documents was, in the past, the norm for thorough, thoughtful and careful researchers. Classic Westlaw encouraged that type of research behavior by not charging researchers a fee for each opened document. Experienced researchers have come to rely on their ability to examine portions of the documents they gather. Moreover, examining and reading documents is one of the leading ways that attorneys and other researchers gather information. Thus, pricing structures like WestlawNext’s, that discourage the practice of opening and reading multiple documents during the research process will surely result in less thorough and less productive research.
The financial disincentive to edit or focus search results created by WestlawNext’s pricing structure will be particularly crippling for researchers precisely because of the nature of WestlawNext results. As discussed earlier in this paper, WestlawNext retrieves much more focused results than Classic Westlaw. Although this feature is sometimes desirable and certainly praiseworthy, it can leave a researcher wanting more. Researchers may want or need to expand their results. One way to do that is by editing the original search. When each attempt to expand results by editing or refining a search costs an additional $60.00, researchers will shy away from doing so. Other methods of expanding results also result in additional charges by WestlawNext. For example, expanding research using KeyCite costs researchers $7.00 per citation. This chilling effect on refining searches or expanding research results by other means will be particularly daunting for newer associates and inexperienced researchers that are understandably afraid of running up excessive research bills.
More than anything, Wheeler’s article has made me ponder how to best teach law students about the cost and quaility consequences of each decision they make during the research process. It also has me wondering whether law schools have ceded too much ground to Westlaw (and Lexis) in allowing them to come into law schools and be involved in teaching students how to use these tools.