INTRODUCTION
Most of the knowledge contained in this post is portable for users of Westlaw, WestlawNext, Lexis and TheLaw.net. This post shows you how to quickly resolve any judicial opinion search to “yes” or “no” in just a click or two. This post is intended to put some meat on the bones of the foregoing decision tree graphic. I designed this decision tree in 1999 and have since used it on a daily basis.
I am the last stop on TheLaw.net’s Virtual Support Desk. I field questions from every practice area and jurisdiction. My decision tree makes it possible for me to know precisely the process I will deploy, even before I hear the question. Ninety-eight percent of support requests are resolved by others. About two percent are ratcheted up to my Inbox. If a subscriber can’t find something we promise to find it for them. If they’re struggling with a query, we build the query for them. Our goal is to keep our subscribers moving forward by quickly resolving their questions to “yes” or “no.” If a question makes its way to my Inbox, it’s a tough search. Sometimes it’s a search where they can’t find anything on point and they just need someone to confirm there’s nothing to find. Resolving a question to “no” is just as useful as resolving it to “yes.” The goal of every search is to ensure you never overlook relevant law.
BACKGROUND
Even though I oversee the marketing and operations of the most successful American owned legal research company, to this day I am a recovering book researcher. Book research was process driven. Everyone used the same two or three indexes of key numbers, statutes annotated and little brown Shepard’s books. Remember pocket parts? How would you like to have the pocket part concession today? Me neither!
The nice thing about book research is that you knew when you were done and you knew you didn’t miss a relevant case.
Three or four years ago, in the course of developing the latest version of TheLaw.net, I decided to compare Westlaw’s compusearch results with Westlaw’s handcrafted annotations and headnotes. The results – or I should say, the lack of results – knocked me out. Like you, I believed Westlaw when they told me their annotations were complete and comprehensive. For all I know, Westlaw believed its own claims, too.
If you’re a Westlaw user, I’d invite you to run some similar tests. I am most familiar with Federal criminal and civil rights law. The Federal statute I chose was the wire fraud statute. I found about 3,500 opinions nationally containing at least one express reference to the wire fraud code. But West’s Headnotes had less than 1,000 entries.
In the days of books this was no big deal. We used the same tools and missed the same cases. But the only way we could avoid reading all the opinions in the library was to use what we now know were inferior handcrafted tools like headnotes and key numbers and annotations. In my opinion, Reuter’s implicitly recognized this point with the release of WestlawNext. WestlawNext is similar to Westlaw in that the interface still looks like the inside of a cockpit. It still looks like the programmers are running the asylum. That said, WestlawNext at least feels like you’re searching on a computer, whereas Westlaw feels like book research on the computer.
That’s why I started TheLaw.net in 1999. Navigating Westlaw was like navigating a law library with the books all over the floor.
HOW LAWYERS SEARCH TODAY
Survey after survey makes plain that today the majority of legal researchers begin with Google because it is free and easy. The public web is a great reference tool. But, there is a difference between “reference” and “search.” We “reference” known items of information. We “search” for unknown items. Google is a great reference tool. It’s even a great research tool when you need a cite to fill in the blank on a routine 404(b) motion. I use Google, Bing, Yahoo and other advertising driven search engines all the time when supporting subscribers. I can’t get the perspective of a blogger in a commercial case law database. When it comes to unpublished opinions, sometimes the only place you find that item of information is on the freeweb, if at all. Commercially searchable collections of unpublished opinions vary. TheLaw.net has documents Westlaw and Lexis don’t have and vice versa. “Comprehensive” is an industry term of art that refers to published judicial opinions. As for Google, as long as it is a slave to advertising it will never, ever be a tool for serious legal research. Moreover, it is very difficult to impose your individual will on Google as they tweak their algorithm hundreds of times weekly. Free search engines are not maximized for case law research. They are maximized for advertising.
This superpost is for serious researchers focused on crafting the best possible work product.
MANMADE TAXONOMY v. ROBOT CREATED TAXONOMY
Humans create partial indexes of judicial opinions. Partial, by definition, means incomplete. Without the various casefinders created in the days of book research, researchers would have to read all the opinions in the library to resolve their question to “yes” or “no.”
The search engine robot, by contrast, indexes every word of every opinion. The ultimate question answered by this post is: “How do I find every opinion in the database that mentions my Code or Concept for the reason I am interested in?”
Before we deal with this question, let’s first understand our dataset. It doesn’t matter whether you use Westlaw, Lexis or TheLaw.net, your database of judicial opinions is tiny. It represents a small fraction of the law.
In the aggregate, Federal and state case law consists of less than six million published and unpublished entries. Ninety-eight percent of civil suits settle, resulting in no opinions. Ninety percent of criminal defendants plead guilty, resulting in no opinions related to pre-conviction proceedings.
When you search a database of case law, you have motivated losers to thank. If Gideon didn’t write his letter to the Supreme Court, there would be no Gideon v. Wainwright. Gideon, like all criminal and civil appellants, was a motivated loser.
The point is that the vast majority of law is unknown to us. My home state of Vermont generates less than 200 published opinions per year. The Vermont Statutes, by contrast, number in the tens of thousands.
The United States Supreme Court generates half the number of opinions annually as those generated by the supreme court in my tiny home state. The nearly 100 Federal districts, when aggregated, annually stamp fewer than 5,000 opinions for publication. Nearly 85% of all Federal opinions originate from the thirteen Federal circuits and the vast majority of them are unpublished.
The vast majority of Federal and state statutes and regulations have never been construed by a court. Another enormous subset has been mentioned only a handful of times. Another huge subset has been mentioned less than fifty times.
To the extent the practice of law is about drawing inferences and making analogies, it is because most of the law is unknown to us.
HOW TO RETRIEVE UNKNOWN OPINIONS
1. A Known Opinion is easy to find. Finding it is a reference task. Both TheLaw.net and WestlawNext have Smart Boxes. Westlaw, in contrast, gives you a lookup box, a validation box, a keyword box and a natural language box. Users of TheLaw.net and WestlawNext start every task from the same spot. (TheLaw.net, incidentally, had a Smart Box several years before WestlawNext. I’m not judging. I’m just saying!)
2. When we talk about legal research, we are talking about retrieving unknown documents from a database. For all of the CLE courses, for all of the law librarians, for all of the West and Lexis trainers trolling the campuses of all the law schools, no one has said: “Here’s the right way to search for Unknown Opinions.”
3. Judicial opinions consist of Codes and Concepts. Codes are: statutes, rules, regulations and citations. Concepts include: facts, statutory and regulatory terms cribbed from the black letter law, terms cribbed from Federal and state constitutions and common/judge-made law.
(Personal Privilege: Lawyers are trained to think of Codes are code. They are not trained to think of Citations of code. Someday, the gatekeepers of legal research (I’m talking about you law librarians) will drop the phrase “CALR – Computer Assisted Legal Research” and simply call it “legal research.” Beginning in 1822, brief writers began abandoning the feather in favor of the dip pen. I have no doubt that the then fledgling law librarian community must have tried mightily to hasten the change by creating acronyms such as “DPAW” for “Dip Pen Assisted Writing.” If you tell me you’re doing legal research, I’ll just assume you’re using a computer. If not, just tell me you’re doing some “BAR” – “Book Assisted Research.” I feel better now.)
ANCHOR + FILTER = HOTLIST
When I field a subscriber’s legal research question – regardless of the practice area or jurisdiction – I ask myself: “Is this search driven by a statute, rule or regulation?” Seventy five percent of the time the answer is “yes.” Half of all searches are driven by statutes.
(If the answer is “no” then I know that I am temporarily dealing with a search that is driven by “concept.”)
Any search that is driven by a statute, rule or regulation is easy.
Just Anchor your query with the statute number and click SEARCH.
–Most states assign a unique number to each statute. This makes searching by statute number super-easy.
–Codes lead to desired results. Words lead to diffuse, ambiguous results.
–A few states and the Feds use a title/section format. If my search is driven by a Federal statute I enter: 18 and 1344 and click SEARCH.
—-Note: Modern case law search engines give primary weight to search term proximity. You don’t need to worry about so-called Within Connectors. Within Connectors are dead. As a general rule you should never use them. Similarly, you should never us /s or /p or /10. Search engines come preloaded with proximity logic and rank opinions accordingly. All such queries lead to arbitrary results. You don’t need to worry about whether the court wrote: 18 U.S.C. section 1344, or 18 U.S.C. sec. 1344 or 18 USC 1344 – you get the point. 18 and 1344 does the trick. If you must, go ahead and enter: 18 /5 1344 or 18 w/5 1344 which asks for the section number within five words of the title number. Just know that when you do this you are actually overriding the algorithm which is completely unnecessary. (The only time you should ever use a Within Proximity Connector is when you have actual knowledge of the range. search /2 seizure is a great example. Search engines see the word “and” only as a connector. search /2 seizure is a nice way to deal with this issue.)
Second, if I find too many cases, I filter my search by Concept.
Using the example above I would simply enter, for example: 1344 and “false loan application” and click SEARCH.
—-I can drop the title number from my query. The section number when combined with a term related to the facts or circumstances of my case is enough to generate my individualized Hotlist.
—-I search binding jurisdictions first. If I resolve my search to “yes” or “no” I’m done. If my binding jurisdiction search is inconclusive, I go national.
—-In Federal searches, once I have my Hotlist, if I want additional insight, using the same query, I expand my search to non-binding jurisdictions.
—-In state searches, once I have my Hotlist, if I feel like I need additional insight, I will replicate my search in selected states using analogous statutes.
Again, the purpose of asking “Code or Concept?” is that numbers lead to predictable, comprehensive results and words lead to diffuse, ambiguous, unmanageable results. Words combined with numbers lead to individualized results. 404(b) and limine is right. Limine is wrong.
WHAT TO DO WHEN YOU FIND A CASE YOU LIKE
Like WestlawNext, TheLaw.net automatically links you to every opinion in the database citing your opinion for any reason. (We actually did this three years before WestlawNext.)
If you’re using a database with a Smart Box that provides access to all Federal and state judicial opinions, and you have a case you like, Anchor your query with the citation and Filter by statute.
“100 F.2d 200″ and 1344
(Be sure to put your citation in quotes so the search engine sees it as a phrase)
The gatekeepers of legal research and apologists for the premium brands, sometimes refer to this as a a “Poor Man’s Shepard’s.” It is quite opposite. Citation indexes were essential to research in the last century. Today, they are a crutch; a one-size-fits-all, mass-customized holdover for the attorneys who openly brag that they still don’t know how to turn on a computer.
An effective legal research class would teach every student how to say: “Yo Robot – Give me every case that cites my case for my point of law!”
You can’t do that with KeyCite. KeyCite is preoccupied with things it wants to sell you.
Everybody knows that appellate opinions typically resolve three to five questions. Who doesn’t want a Hotlist of every opinion, from your binding jurisdiction(s), citing your case for your reason? I mean, it doesn’t get any better than that. That’s why we call it a “Hotlist.” You want to check every opinion on that list.
Citators like KeyCite, do not allow you to individualize the validation process. The Smart Boxes provided by WestlawNext and TheLaw.net allow you to do just that. (This assumes your WestlawNext subscription includes all Federal and state case law.)
If you want to know whether your case is still “Good Law” KeyCite spits out a list of every opinion in every jurisdiction that has ever cited your case for any reason, together with a list of secondary resources you don’t care about and a list of legal memoranda West mined for free from Pacer that it now wants to sell you and it makes you browse that list. Remember, you just want to know if your opinion is Good Law.
Validation is about three things: jurisdiction, citation and point of law.
Using TheLaw.net or WestlawNext, activate your binding jurisdiction databases, enter your citation and statute number (or concept) and click SEARCH. (You may be able to do this on Lexis. I haven’t checked. The reason I haven’t checked is that whenever I use Lexis I have this sudden urge to put a pistol in my mouth.)
The upshot? Instead of browsing an endless list for Red Flags that have been planted by who knows who, for who knows what point of law, you’re looking a discrete list of binding opinions that cite your case for your individualized reason. Along the way, you pick up all the good news about your case that outmoded Red Flags invite you to gloss over.
This is the difference between a generic solution that plays into the hands of vendors who want to lead you into purchasing items of information that are outside your contract and a powerful, individualized solution that ends information overload by producing a discrete Hotlist of opinions that you wouldn’t want to miss!
ANALYTICS
By default, Westlaw results are ranked Newest to Oldest. A lot of commentators are flipping out over the superior results they are obtaining on WestlawNext. If you are a Westlaw user, you can replicate these results by drilling down in your Settings and changing the default ranking to Relevance. You will thank me.
For a lot of years, TheLaw.net poked fun at Westlaw for ranking results Newest to Oldest. TheLaw.net Equalizer has always provided default results by Relevance. We even assign percentages so you can assess the relevance of opinions in relation to each other. In determining relevance rankings, Citetrak, our best-of-breed, first-mover algorithm, considers search term proximity, density, diversity and numerosity.
TheLaw.net’s Results Report is dynamic. In a click you can alphabetize A-Z. In another click Z-A. Another click sorts Newest to Oldest. Another Oldest to Newest. Another click sorts by Citation Frequency Nationally. Another limits the sort to Citation Frequency within your results only. Another subsets results by Jurisdiction. Thereafter, you can sift and sort as above.
The upshot is that at-a-glance, you know that the best opinions are the ones that share high relevance and high citation frequency. And – ah – those are the ones you read. 
