Issues in Using Free Web Resources in Legal Practice

By Paul Healey* and Paul Gatz**

I.          Introduction

Access to accurate, complete, and timely legal information is an essential component of practicing law.  Unfortunately, such access has historically been expensive.  The growth and integration of the World Wide Web into daily life has led to a popular sentiment that “everything is on the web, and it’s free.”[1]  Although this is not true in most areas of information, there is reason to investigate such a possibility in the case of legal information, particularly in regard to primary resources such as statutes, cases, and regulations.

Traditional legal publishers moved online in the 1970s with the advent of Lexis and Westlaw.  These services, along with other newer competitor services are now accessed through the Web and are certainly accurate, complete, and timely, but they are far from free.  However, there are Web resources that offer a wealth of information that can be accessed free of charge.  In particular, several free Web resources, such as Google Scholar,[2] Cornell University’s Legal Information Institute (LII),[3] and numerous government websites provide an expanding coverage of legal information that attorneys can use to conduct legal research.

Our question is whether these free Web resources have developed the features and level of quality to serve as suitable legal research substitutes for the traditional fee-based electronic resources.  This Column will explore the online legal research habits of attorneys and will consider the types, extent, and depth of legal information available for free on the Web.  The Column will conclude with a discussion of issues related to conducting practice-oriented legal research solely by means of free Web resources.

II.        Trends in Online Legal Research

The use of free Web resources for the purposes of legal research seems to be prevalent among practicing attorneys.  In 2012, the Academic Law Libraries Special Interest Section (ALL-SIS) of the American Association of Law Libraries appointed a Task Force that distributed a survey on the legal research practices of attorneys.[4]  In the survey, 61.4% of responding attorneys reported that they use free Web resources in their legal research frequently or very frequently.[5]  Only 12.6% reported using them rarely or never.[6]

The 2013 annual Legal Technology Survey Report published by the American Bar Association (ABA) found that 92.9% of practicing attorneys use free Web resources for legal research purposes[7] and that 95.9% of attorneys use Web resources in general.[8]  The ABA survey information, unfortunately, offers few details on how attorneys are using free Web resources to conduct legal research.  However, it does say that fifty percent of survey respondents reported starting research projects with free Web resources in 2013.[9]  The percentage of attorneys who reported starting their research with fee-based Web resources was 36.4% in 2013,[10] while the percentage of attorneys who reported starting research with print resources was only 10.7%.[11]  These data indicate a clear preference for using free Web resources in the initial stages of research.

However, when starting a research project conducted solely online, the survey data indicate little difference in attorneys’ preferences for free or fee-based Web resources.  The percentage of attorneys who reported starting online research projects by using fee-based online resources was about 40%,[12] while the percentage of attorneys who reported starting online research projects by using free general search engines was 37%.[13]

The ABA survey reports provide some detail as to what sorts of free Web resources attorneys use for legal research.  In 2013, over a third of respondents, or 35.6%, reported using Google,[14] and about a quarter of respondents, or 24.6%, reported using a state bar association offering, which presumably means Fastcase or Casemaker.[15]  Other responses included government websites (14.3%), FindLaw (9.7%), and Cornell’s LII (9.4%).[16]

The ABA and ALL-SIS surveys present a picture of the legal research habits of practicing attorneys in which the use of free Web resources is widespread.  We know that attorneys are using free resources like Google, government websites, Cornell’s LII site, and state bar association offerings, but we do not know what types of information (primary or secondary, factual or legal, statutes or case law) or how much information attorneys are retrieving from these resources.  It is possible, however, to form some idea of how attorneys could use these resources, based on the types and extent of legal information that they make available.

III.       The Free Web Legal Information Environment

What is referred to here as the “free Web legal information environment” is nothing less than the totality of legal information available free of charge on the Web.  As a single entity, the Web is unfocused, disorganized, and fragmented, and the full range of its coverage is unknown.  However, consideration of its constituent websites, in particular those identified in the ABA Legal Technology Survey as used by practicing attorneys for legal research, can shed some light on the types, extent, and depth of legal information available in the free Web environment.  Below we describe the resources most often mentioned in the surveys.

A. Google & Google Scholar

Google’s standard search uses “software known as ‘web crawlers’ to discover publicly available webpages” and then creates an index of those websites.[17]  When a user enters search terms into Google’s search box, Google’s algorithms use those terms to determine and retrieve the most relevant websites from its index.[18]  Therefore, a Google search will help the legal researcher find only information available on publicly accessible websites and only information that the Google algorithms deem relevant to the search terms.

For a more focused search, the Google Scholar database of published case opinions covers “US state appellate and supreme court cases since 1950, US federal district, appellate, tax and bankruptcy courts since 1923 and US Supreme Court cases since 1791.”[19]  It also features a rudimentary citator, accessible by clicking “How cited” for a particular case.

B. Fastcase/Casemaker

Fastcase[20] and Casemaker[21] are not free Web resources, but nearly all state bars offer one or the other as a benefit of membership in the state bar association.[22]  Both databases provide online access to state and federal case law, statutes, and regulations.[23]  Fastcase’s Federal Library features a full set of case opinions for the U.S. Supreme Court, all federal appellate courts, all federal district courts, and all federal bankruptcy courts.[24]  Casemaker also features a “negative citator” called CaseCheck+[25] and daily summaries of state and federal appellate cases in its CasemakerDigest.[26]

C. Government Websites

Federal, state, and local government websites all provide information useful to the legal researcher.  Court websites provide recent case opinions, legislative websites provide statutory codes, as well as session laws and bills, and agency websites provide regulations, administrative decisions, and guidance.  In particular, the Government Printing Office’s Federal Digital System provides around fifty collections of information from all three branches of the federal government in the form of “authentic, digitally signed PDF documents.”[27]

D. Cornell University Law School’s Legal Information Institute

Cornell’s LII “publishes electronic versions of core materials in numerous areas of the law,” including U.S. Supreme Court opinions going back to 1992 and the full U.S. Code.[28]  The LII also publishes secondary sources, such as Wex, “a collaboratively-edited legal dictionary and encyclopedia,”[29] and provides links to other federal and state law material.

IV.       Issues in Using Free Web Resources in Legal Practice

Having reviewed a few of the more popular free Web resources for legal research, it is clear that the free Web legal information environment contains a wealth of primary legal information, along with a few citators and secondary sources.  To supplement these resources, the Web offers other free resources such as legal blogs and websites of law firms, law schools, libraries, and non-profit organizations that provide guidance on both the law and legal research.  The question remains whether the free Web legal information environment stands as an adequate legal research alternative for the fee-based electronic resources like Westlaw and LexisNexis.  Primarily, this is a question about whether these resources can offer specific features, like secondary sources, sophisticated citators, and editorial enhancements that match or exceed the level of quality offered by the fee-based resources.

Assuming that these threshold requirements were met, a number of issues and questions would arise.  For one, without the mediation of a trusted legal publisher like Thomson Reuters or Reed Elsevier,[30]   the practicing attorney would need to make determinations about the reliability of particular free Web resources.  Jootaek Lee has suggested that free Web resources should be evaluated on standards of authority, accuracy, currency, coverage, and usability.[31]  These evaluations would either need to be performed by the attorney during the course of legal research or performed and compiled into research guides by legal information experts.

Second, the transition from a legal research environment that is isolated from the public to one that is open to all may have serious effects on attorneys’ standards of professional competence and duty of care.  Lawrence Duncan MacLachlan has argued that public access to legal information on the Web “challenges the traditional assumption that lawyers are more competent researchers than the general public” and may lead to the transformation of “the minimal standard of professional competence in legal research from that of the ordinary lawyer to the higher standard of the ‘intelligent layman.’”[32]  In an environment in which attorneys conduct legal research solely using free Web resources, they will need to be more competent in using those resources than the “intelligent layman” in order to avoid alterations to their professional standards of competence.

Finally, it is worth considering what sort of market impact the free Web legal information environment may have on the traditional, fee-based electronic resources.  If free Web resources can adequately serve as substitutes for Westlaw, Lexis, or Bloomberg, then one might expect the greater degree of competition in the market for legal information to have serious economic effects on the business models and choices of the fee-based resources.  Competition may lead to increased quality of existing products and services, such as citators, finding aids, and editorial enhancements, as well as to new, innovative products and services.  Along with higher-quality and more innovative products and services, the fee-based resources may raise their subscription fees and market themselves solely to larger firms willing to pay their prices, leaving smaller firms and practice environments to rely solely on the free Web legal information environment.

V.        Conclusion

Practicing attorneys are using free Web resources for legal research.  These free Web resources vary in the types, extent, and depth of legal information they offer, and the free Web legal information environment itself remains unfocused, disorganized, and fragmented.  As free Web resources continue to develop, the legal profession should maintain an awareness of the issues and opportunities that may arise when attorneys can competently conduct legal research solely by means of the free Web legal information environment.

 


*Senior Instructional Services Librarian, Associate Professor of Library Service, University of Illinois College of Law

**Graduate Assistant, University of Illinois College of Law

[1] The True Value/Cost of Web-Based Information, CIT Infobits, May 2002, at 3, 3, available at https://cdr.lib.unc.edu/indexablecontent?id=uuid:43df4571-41b8-44ab-b73f-90df0e8b8457&ds=DATA_FILE (last visited Feb. 9, 2014).

[2] Google Scholar, http://scholar.google.com/ (last visited Feb. 8, 2014).

[3] Legal Info. Inst., http://www.law.cornell.edu (last visited Feb. 8, 2014).

[4] ALL-SIS Task Force on Identifying Skills & Knowledge for Legal Practice, A Study of Attorneys’ Legal Research Practices and Opinions of New Associates’ Research Skills 2 (2013), available at http://www.aallnet.org/sections/all/storage/committees/practicetf/final-report-07102013.pdf.

[5] Id.

[6] Id.

[7] Am. Bar Ass’n, 2013 Legal Technology Survey Report, Vol. V: Online Research 35 (Joshua Poge ed., 2013).

[8] Id. at 33.

[9] Id. at 22.

[10] Id.

[11] Id.

[12] Id. at 34.

[13] Id.

[14] Id. at 38.

[15] Id.

[16] Id.

[17] Crawling & Indexing, Google Inside Search, https://www.google.com/intl/en/insidesearch/howsearchworks/crawling-indexing.html (last visited Feb. 8, 2014).

[18] Algorithms, Google Inside Search, https://www.google.com/intl/en/insidesearch/howsearchworks/algorithms.html (last visited Feb. 8, 2014).

[19] Google Makes Free Caselaw Search Available in Scholar, Internet for Law., http://www.netforlawyers.com/content/google-makes-free-caselaw-search-available-scholar (last visited Feb. 8, 2014).

[20] Fastcase, http://www.fastcase.com/ (last visited Feb. 8, 2014).

[21] Casemaker, http://www.casemaker.us/Main.aspx (last visited Feb. 8, 2014).

[22] Shawn G. Nevers, Becoming a Cost-Effective Researcher, 14 Student Law. 18, 18–19 (2012), available at http://www.americanbar.org/publications/student_lawyer/2012-13/dec/cost_effective_researcher.html (last visited Feb. 8, 2014).

[23] Products, Casemaker, http://www.casemaker.us/Products.aspx (last visited Feb. 8, 2014); Scope of Coverage, Fastcase, http://www.fastcase.com/whatisfastcase/coverage/ (last visited Feb. 8, 2014).

[24] Scope of Coverage, supra note 23.

[25] CaseCheck+, Casemaker, http://www.casemaker.us/Productscasecheck.aspx (last visited Feb. 8, 2014).

[26] CasemakerDigest, Casemaker, http://www.casemaker.us/ProductsCMDigest.aspx (last visited Feb. 8, 2014).

[27] About FDSys, U.S. Gov’t Printing Office, http://www.gpo.gov/fdsysinfo/aboutfdsys.htm (last visited Feb. 8, 2014).

[28] Who We Are, Legal Info. Inst., http://www.law.cornell.edu/lii/about/who_we_are (last visited Feb. 8, 2014).

[29] FAQ, Legal Info. Inst., http://www.law.cornell.edu/wex/FAQ (last visited Feb. 8, 2014).

[30] These are the owners of Westlaw and LexisNexis, respectively.

[31] Jootaek Lee, Gatekeepers of Legal Information: Evaluating and Integrating Free Internet Legal Resources into the Classroom, 17 Barry L. Rev. 221, 228 (2012).

[32] Lawrence Duncan MacLachlan, Gandy Dancers on the Web: How the Internet Has Raised the Bar on Lawyers’ Professional Responsibility to Research and Know the Law, 13 Geo. J. Legal Ethics 607, 609–10 (2000).