Thank you for sharing!

Your article was successfully shared with the contacts you provided.
For the past five years, I’ve been infatuated with the Internet. To anyone who would listen, I’d rhapsodize about all of the Internet’s nifty “gee whiz” qualities: how, from my living room, without paying a dime (except for my Internet service provider), I could go online and download statutes after the library had long closed, snag a court decision hot off the press, or uncover juicy tidbits of information on opposing parties to use to impeach them at trial. But as with any flirtation, I never took the Internet seriously. Come the time to hunker down to research a motion or appellate brief, I never once considered abandoning my stable 12-year relationship with Lexis for the quick thrills of Internet eye candy. But all that changed this past spring. A combination of an unexpected appeal of a multimillion-dollar jury verdict against my client (who had severed his relationship with the attorney who’d represented him at trial), a shoestring budget, and a tight deadline put me in the position of either burning through my modest retainer in a matter of hours with a couple of Lexis or Westlaw searches or relying on free Internet resources for rigorous research. Financial expediency propelled me down the latter course, recognizing that if the Internet ultimately proved fruitless, I could always backtrack to the pricier services. I never did. During my research odyssey, I discovered that the Internet has come of age, maturing into a robust, dependable, and fairly organized legal research tool capable of performing the most salient research functions of Lexis or Westlaw for free (or, at most, for a negligible cost) in the most adverse of research circumstances. Here is the story of how the Internet came to my rescue and, in so doing, forced me to take it seriously. Even had I set out to “beta test” the Internet’s capacity as a cheap legal research tool, I couldn’t have designed a more elaborate problem, with fewer opportunities for cheating through resort to prior knowledge, than that posed by my appeal. Since my appeal arose in a circuit where I had never practiced (and, in fact, needed to seek admission), I couldn’t fall back on my experience with local appellate practice gained from my numerous proceedings at the D.C. Circuit. Instead, I would need to use the Internet for such procedural matters as docketing requirements and word limits for briefs — details that come easily as breathing in familiar jurisdictions, but can be vexing to track down for a newcomer. Nor could I take any shortcuts to research the substantive issues involved in the case, including engineering malpractice, the legality of the damage award, prejudgment interest, and negligent misrepresentation. I had no experience handling these types of issues in any jurisdiction, let alone under New York law, which governed the claims. To further complicate matters, because of delays in the preparation of the record and my client’s difficulty in obtaining copies of his case files, I did not know when, if ever, I could access the trial motions that addressed some of the legal issues and thus could have served as a starting point for research. (As it turned out, I was glad that I did not wait because when I finally obtained the motions just a few weeks before the briefs were due, the arguments were scant.) In addition to these inherent obstacles, I established certain ground rules to maximize the accuracy of my research while limiting costs. First, I would strive to stay as close to the source of the material as possible. For example, I favored a database of cases maintained by the court of issuance rather than an intermediary such as legal newspapers, bar associations, or even law schools (my second choice on the list because, in most cases, the law schools’ online court opinion databases predate those maintained by the courts themselves and are readily searchable). Next, I would seek the most direct route to information by relying heavily on law portals (my favorites being the long-standing Findlaw.com and the Cornell Law School’s LII), which are compilations of legal resources organized by category. I feared that the more generalized Web search engines would generate too many links. In the event that I needed to choose between multiple databases with the same material, free access would take priority over anything for a fee, and I would pay a fee only if absolutely necessary to acquire the information. Finally, I would give preference to databases with search engines similar to the ones I’d grown familiar with at Lexis and Westlaw rather than consume time learning some other funky system. MY RESEARCH PROTOCOL With the backdrop for my research in place, I turned my attention to my top priority: obtaining a copy of the 2nd Circuit’s local rules so I could start the process for my admission and familiarize myself with the requirements for preparation of the brief. Because the 2nd Circuit does not sponsor a Web site, the process turned out to be a bit trickier than I anticipated. Following an unsuccessful attempt to cheat by calling the clerk’s office for the rules, only to be told that mailing a copy could take up to two weeks, I proceeded to Findlaw. From the “Judiciary” category, I selected the option “U.S. Court of Appeals,” expecting that I would find a link to the 2nd Circuit’s Web site, where I could download a copy of the court’s rules. However, my chosen path only linked to several sites with a collection of 2nd Circuit decisions that I nevertheless bookmarked for future use. After briefly checking the Cornell LII site only to find the same links, I broke one of my ground rules and turned to a generalized search engine (altavista.com), using “Second Circuit” as my search term. Predictably, thousands of links materialized, but I hit pay dirt with the second one on the list for the New York Law Journal( www.nylj.com). [Editor's Note: The New York Law Journalis affiliated with law.com.] There, I located a copy of the 2nd Circuit rules, as well as a pamphlet from the clerk’s office entitled, “A Litigator’s Guide to the Second Circuit.” Even better, the site offered a searchable database of New York state court decisions that I could use later on. With the procedural rules out of the way, I turned to two preliminary matters: identifying the applicable standard of review and determining whether the issues I’d designated for appeal had been properly preserved below. Of the three sites found earlier offering 2nd Circuit decisions, I selected the Touro Law School site over the Findlaw and Pace Law sites. This search engine allowed for more sophisticated searches, and most resembled the Lexis/Westlaw model. Although the cases at all the sites, Touro included, only dated back to 1995, I remained unconcerned, at least for this phase of my research. First, since virtually every appellate decision addresses either the standard of review or issue preservation at least cursorily, the date limitations restricted the number of cases from which I would search, thus enabling me to use broad but simple search terms, e.g., “standard of review” and “jury verdict,” without generating an excessive number of cases. Second, the recent cases would provide me with the most current law, but at the same time cite the “old chestnuts,” i.e., pre-eminent cases that defined and explained the applicable standards. This strategy succeeded. Even with the date limitations, my searches in the database maintained by Touro generated close to 50 cases, among them a significant number of unpublished 2nd Circuit decisions. Although lacking in value as citable precedent, the unpublished decisions were crammed with string-cited precedent, and after skimming through just a couple of the unpublished decisions, several cases emerged as most widely cited. I retrieved those cases or at least the bulk that happened to have been issued post-1995 simply by performing a case name search in the Touro 2nd Circuit databases. By now, I had arrived at the heart of the case: the substantive issues pertaining to engineering malpractice and damages arising under New York law. I backtracked to the NYLJsite, which contained recent New York cases from the New York Supreme Court, Appellate Division, and Court of Appeals, as well as an easy-to-use search tool that categorized cases by topic. By selecting from topics like malpractice, negligence, and damages, I gleaned a number of helpful recent cases that furnished a good overview of the applicable law. As further assurance, I cross-checked my research results by running similar searches in the New York Court of Appeals database going back to 1993 at the Cornell LII site. I also returned to Touro’s 2nd Circuit site to hunt down relevant precedent. I’d located enough case law to get started on a draft, but at the same time I’d also gone far enough to recognize that gaps remained as a result of my exclusive use of date-restricted databases. For one, the case law I’d found cited or discussed numerous pre-1995 cases, and the rules of good research practice dictated that I review these cases before citing them in my brief. In addition, I worried that I hadn’t found any case law on one of the quirkier issues in the case: the propriety of an instruction that the jury could consider my client’s alleged violations of engineering conflict-of-interest rules as evidence of malpractice. From the transcript, I learned that plaintiff’s counsel informed the judge that his requested instruction was supported by case law, but he did not provide any citations on the record. Having failed to find any such cases myself, I assumed that they fell outside the date parameters of the databases I was using. Clearly, I needed to expand the scope of my research. But could I find pre-1995 case law on line at no or little cost? I had heard that Lexis operated an a la carte type of research service online that enabled nonsubscribers like myself to perform individual searches or download single cases through use of a credit card. Although I was sufficiently desperate to pay Lexis’ $8-per-case fee to view the 15 or so decisions I was missing (I never priced the cost of performing a search), for some reason (fortuitously, as it would turn out), I was simply unable to activate the system with my credit card information. So I returned to Findlaw, this time selecting the “Reference” option from the menu. After making my way down the list (most of which consisted of other portal type sites listing legal resources), sometime around midnight I stumbled across a site called Versus Law ( www.versuslaw.com). At the Versus Law site, I learned that a service including a database for opinions from the Supreme Court, federal circuits, a few federal district courts, and state court opinions, dating back at least to 1940, was priced at a remarkable $7 per month for each attorney per law firm (in my case, just one). Moreover, in contrast to some of the other lower-priced online research competitors, Versus Law did not obligate me to commit to a certain minimum subscription period. Also, Versus Law allowed me to test out the service before subscribing by entering a search and viewing the list of cases generated. I immediately launched into a quick search by typing in the name of one of the decisions I was trying to find; within seconds, both the case as well as several other decisions that cited it came up. The ease of use of the service — which featured the familiar Lexis/Westlaw Boolean search tools, speed, and cost — clinched my decision to subscribe. I punched in my credit card information and, within moments, began gorging at this overflowing trough of newly available case law. Through Versus Law, I polished off my remaining research on the engineering malpractice and damages issues, searching both New York and 2nd Circuit law. (Versus Law enabled me to conduct the searches simultaneously). As for the conflict-of-interest issue, although I expanded my search beyond New York law into all federal and state jurisdictions (which would have cost a bundle in a commercial search service) and, in fact, turned up some helpful case law, I remained unable to find any authority to support the given jury instruction on conflict-of-interest that plaintiffs’ counsel had referenced at trial. This hole in the research troubled me, but I rationalized that if the elusive cases were as relevant as they had been portrayed, I would have found them in the course of my research. And in the worst-case scenario, if I had missed the cases and my opponent cited them in his brief, I would still have a chance to respond on reply. By this point, my research had progressed so smoothly that I grew curious about one category of cases — federal district court decisions that, ordinarily, I’d exclude entirely from appellate researches, given their absence of precedential value. None of the federal district courts in New York issued decisions online, and the district court decisions available at Versus Law were recent cases, i.e., within the past two to three years, from only a small handful of district courts. Yet, I’d read about a site known as Jurisline.com that supposedly made available the same case databases offered by the commercial services but for free. (Indeed, at the time, Jurisline was embroiled in litigation with Lexis regarding Jurisline’s alleged misappropriation of allegedly proprietary databases of cases compiled by Lexis). Sure enough, Jurisline enabled me to search for federal court decisions within the 2nd Circuit (as well as other federal circuit, state, and Supreme Court cases) and also to access cases through a “quick cite” feature, i.e., by entering the official case cite. Although I did not find any case law worth citing, Jurisline proved invaluable later on by enabling me to obtain copies of the district court cases cited in my opponent’s brief. Unfortunately, as of this writing, the availability of federal district court cases from Jurisline as well as other features is uncertain, given the resolution of its litigation with Lexis. SHEPARDIZING AND CITATION With the results of my research, I was poised to start drafting except for one more task. I needed to Shepardize the cases that I’d found. Given the difficulties I’d had in signing up for the Lexis site, as a matter of principle, I hesitated to return to use the Shepardizing service — at $4 a case — available to nonsubscribers. (Although, admittedly, I considered this cost a fair alternative to avoiding the labor involved in Shepardizing by hand, a chore that I’d not undertaken since my legal research class in my first year of law school.) Instead, I opted for what a colleague of mine has termed “poor man’s Shepard’s,” i.e., performing a search of the case name and reviewing the decisions citing that case to determine whether it remains good law. I felt confident that this exercise, combined with my repeated searches of recent case law (once through the NYLJsite and subsequently through Versus Law), provided sufficient assurance as to their continued vitality. As for case citation, here I faced a real challenge. Although Versus Law, the NYLJ,and Jurisline gave me at least one of the official reporter cites for the cases that I’d found, only Jurisline gave specific page citations, and then only for some of the cases. Fortunately, most of the cases I cited dealt with only one discrete issue, so I could avoid specific page citation and simply use a parenthetical to describe the case holding. In the handful of situations where I quoted a case directly, rather than provide a page cite, I included a large enough chunk of the passage to facilitate the process of finding it within the case. In any event, I figured that technology had just about rendered specific page cites irrelevant, since the judges or clerks reading the brief were most likely pulling the cases from some computerized search and could just as easily find my quoted passages through a “find” or “search” feature. With the information I’d gleaned for a cost of $7, I drafted some of the best opening and reply briefs of my career; creative in concept, persuasive in argument, and thoroughly researched. And that I had turned to several different sites to locate case law — which many might perceive as a drawback — proved to be the characteristic that most reinforced my confidence in my research, since it allowed me to cross-check the results of similar searches against each other. By contrast, no comparable measure for quality control exists with a pricey commercial search provider, especially because outside of law schools, where Lexis and Westlaw flow freely, cost constraints typically prevent attorneys from subscribing to both services. But when all was said and done, how would my research stand up in court? After all, one common criticism of free, online research is that it is neither as complete or as accurate as the for-fee providers. Here, I had the benefit of putting my research to the test. Although the panel remains out on the decision (which, in any event, does not necessarily reflect on the soundness of an attorney’s research), the research in my brief matched that of my opponent and a co-appellant, who were represented, respectively, by large and well-reputed New York and D.C. law firms. Although the co-appellant’s attorneys and I had taken different strategies on appeal, which resulted in minimal overlap in the case law cited in our opening briefs, we cited many of the same cases in our reply briefs where we responded to the appellee’s arguments. Moreover, on two of the issues briefed on reply — preservation of arguments and pre-judgment interest — I had even discovered a line of helpful case law not mentioned in the co-appellant’s brief. As for the pesky conflict-of-interest case law that I could not locate, my opponent’s brief did not hold any surprises. To be sure, my opponent cited two cases as authority for his position on the relevance of the conflict, but the decisions had been issued by mid-level state courts in far-off jurisdictions and related to intentional or gross attorney misconduct rather than engineering malpractice where intent is not a factor. Given the tangential applicability of the cases, even if I had used a commercial provider, I doubted that I would have discovered them. WHERE WE GO FROM HERE Within a few years, even the minor impediments that I encountered in my use of free online research materials will evaporate. We’ll see newly adopted official citations systems (which are already under development by courts and ABA committees) that will use a medium-neutral system like paragraph numbers or case names and dockets for citation, thereby eliminating any need to rely on paper reporter citations. More and more courts — even federal district courts — will implement online e-filing systems that will lead to an infrastructure for electronic posting of decisions and orders. And as for the limited options for accessing older case materials at low cost (with the exception of Versus Law), let’s face it: Who really wants to hang her hat on a 50- or even 20-year-old precedent? Where possible, judges and lawyers favor citation to the most recent case law available. In five more years, a decade’s worth of free case law will be available online, which may suffice for the majority of research needs. In this context, free or low-priced online legal research is inevitable. Though a desperate turn of events, as well as my passion for a good bargain and a great challenge led me, perhaps prematurely, even foolishly, to take the Internet seriously, the course of future events will compel all attorneys to do the same. Might as well start now. Carolyn Elefant is the principal in the Law Offices of Carolyn Elefant ( www.his.com/israeloce). Copies of the briefs discussed in this article can be obtained by request to [email protected].

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.