Unpublished opinions

A Slate piece, “Sotomayor’s Manly Man Ruling – Her bold ruling in favor of a man who claimed sex discrimination,” by Emily Bazelon, includes this paragraph on unpublished opinions:

Sotomayor agreed to issue an unsigned and unpublished opinion. The term “unpublished opinion” is a bit of a misnomer. These rulings appear in the Lexis and Westlaw databases, where lawyers do legal research. And since a change in the rules in 2007, lawyers have been able to cite unpublished opinions in other cases. But unpublished opinions have second-class status. They’re shorter and often still carry less weight–they’re persuasive rather than binding precedent, in lawyer’s terms. They are not supposed to be the way judges dispose of difficult cases that raise substantive or novel legal issues. But sometimes those cases sneak in, because once a culture of unpublished opinions takes hold in a particular circuit, it’s hard to control. And in the 2nd Circuit, I’m told, there’s a premium on unanimity and consensus, so a 3-0 unpublished opinion might trump a 2-1 published one, in some cases and in some judges’ eyes.

Happy Days No More

In the not too distance past, say back when Happy Days was a popular TV show, the annual song and dance between publisher, library director and dean went something like this:

Legal publishers would post annual price increases with an average of 11% – 15%.

The library director would then tell his or her dean, “Gosh, Look at this:  Law books are going up by 11% – 15%.”

The dean would then take out his or her checkbook and tell the director, “Outrageous.  Here’s your library’s annual 15% budget increase.”

Those days are over.  So over.  So, so over.

Today when I tell the dean that a certain publication is going up by a double-digit price increase, his reply is quick and unequivocal:  “That’s easy,” he says, “cancel it.”

Many of us — myself included — still have not received next year’s library budget.  But there is no doubt in my mind that a sea change in library collections will be forced by changing budgets and starting next year (by next year, I mean next “fiscal year,” which for us begins on September 1, 2009 – so next year is right around the summer corner).  I anticipate a reduction of at least 15%.  Further, my book funds — i.e., funds used for monographs — are entirely endowment based; I shudder to think what will happen there.

Let’s take a few examples of how the law library landscape might change.

We subscribe to both United States Code Annotated (USCA) and United States Code Service(USCS).  Last year here’s what we paid for each:

We paid $1,645 for USCS (a Lexis product); and we paid a total of $5,376 to West for their USCA in 2008, including all bound volumes and pocket parts.

Each set is a complete annotated version of the United States Code.  The quality on both is extremely good.  There is absolutely no doubt in my mind that any student, professor or practitioner can perform adequate legal research with just one or the other — no one needs both.  So faced with that fact and the budget reality, which one will the dean say “that’s easy” — the one that costs $ 1,645 or the one that costs $ 5,376?

Depending upon how my budget situation shakes out, we may even face the rather drastic step of cancelling some online databases.  There are three gigantic legal online commercial databases, each with its own benefits and features, but each also a complete online law library.  Here’s what they are costing us:

Bloomberg Law:  Free

LexisNexis:  $ 68.00 per FTE, with minimum of $ 15,000 and maximum of $ 50,850

Westlaw:  $ 73.27 per FTE, with minimum of $ 15,878 and maximum of $ 64,206

Looking back over the past few years helps show pricing patterns, which could aid in the decision making:

LexisNexis:

2008:  $ 34,980 (6% increase over previous year)
2007:  $ 33,000 (5%)
2006:  $ 31,497 (5%)

I should note that this year LexisNexis “gets it” and are holding next year’s price to the same amount as last year’s.  We’ll be adding them to our Good Guys list (see also this item).

Westlaw:

2008:  $ 39,951 (7% increase over previous year)
2007:  $ 37,338 (7%)
2006:  $ 34,773 (14%)

Some things will have to go.  Over the rest of the summer I and my colleagues will be making some tough decisions.  Redundancy is nice, but may not be affordable.

Wake-Up Call re: Deficient Keyword Searching; Need to Use Careful Thought, Quality Control, Testing & Cooperation

Law.com has a New York Law Journal piece from last month reporting on judicial frustration with poor keyword searching by lawyers:

H. Christopher Boehning & Daniel J. Toal, “Wake-Up Call on Slipshod Search Terms,” New York Law Journal (April 29, 2009)

The article reads in pertinent part:

Given the ubiquitous use of general purpose search engines such as Google and attorneys’ routine use of legal search engines such as Westlaw and LexisNexis, it is perhaps surprising that lawyers frequently falter in formulating search terms, or “keywords,” designed to retrieve relevant e-mails and other electronically stored information.

Nevertheless, courts have time and again confronted haphazard and uncoordinated search methodologies for ESI.

Evidently weary of deficient keyword searches, U.S. Magistrate Judge Andrew J. Peck recently issued a self-styled “wake-up call” to members of the bar in the Southern District. Instead of attorneys designing keywords without adequate information “by the seat of their pants,” Peck appealed for keyword formulations based on careful thought, quality control, testing and cooperation.

The magistrate judge’s admonition arose in William A. Gross Constr. Assocs., Inc. v. American Mfrs. Mut. Ins. Co.[FOOTNOTE 1] The case involved multiple parties and multimillion dollar claims concerning alleged defects and delays in the construction of the Bronx County Hall of Justice….

Hat tip to Internet Guide for the Legal Researcher.

LexisNexis cuts 35 jobs in Bellevue

This story from the Seattle Times:

LexisNexis, a legal and news information provider based in New York, is eliminating 35 jobs in Bellevue, according to a company statement released Thursday. The local office has about 300 employees.

The affected jobs are in product development, which will be outsourced.

Laid-off employees received one to five months of notice, and they can apply for new jobs within the company or outside employment. The company will also provide severance, continued benefits and career transition services.

[Hat tip to @trhalvorson on Twitter]

What Price, Captain?

Yesterday I saw, and thoroughly enjoyed, the new Star Trek movie.  It’s fun, and funny with some terrific lines.   But one of my favorite all-time movie lines comes from the 1987 film Spaceballs:

          Prepare ship for ludicrous speed!

It was spoken by Colonel Sandurz, following this dialog:

Colonel Sandurz: Prepare ship for light speed.
Dark Helmet: No, no, no, light speed is too slow.
Colonel Sandurz: Light speed, too slow?
Dark Helmet: Yes, we’re gonna have to go right to ludicrous speed.

An earlier post here,“Lawsuit alleges Chadbourne overcharged for computerized legal research,”cited Westlaw’s per-minute charge of $ 13.86 for its ALLSATES database.  I was citing from a 2006 Westlaw price list.  I have since found a more recent (April 2009) price list and, not surprisingly, the cost of this access is now higher.  Today the per-minute charge for using this database is $17.48.

Listed below are some of the prices for Westlaw database access as listed in the Pricing Guide for Private Price Plans (April 2009) brochure:

Per Minute Charges
All Federal and State Cases     $20.98
All Federal Cases       $17.48
All U.S. Supreme Court Cases    $8.95
U.S. Courts of Appeals Cases    $17.48
U.S. District Courts Cases      $17.48
All State Cases         $17.48
Individual State Cases  $8.95
United States Code Annotated    $10.50
Individual State Statutes Annotated     $10.50
Code of Federal Regulations     $8.95
Texts and Periodicals   $23.87
American Law Reports    $20.98
American Jurisprudence 2d       $17.48
Federal Practice and Procedure  $13.75
Journals and Law Reviews        $17.48
All News        $17.48

Remember that that’s per minute.  Multiple some of those numbers by 60 to see what an hour fishing online would cost.

The other billing method listed in the brochure by “Transactional Charges.”  A “transaction,” as I understand it, is a “search” – i.e., once in a database, entering a query and then pressing the “Search” button — ka-ching.  Here are some of these costs:

Transactional Charges
 
(no connect time or communications charges)

All Federal and State Cases     $194.00
All Federal Cases       $120.00
U.S. Supreme Court Cases        $61.00
U.S. Courts of Appeals Cases    $73.00
U.S. District Courts Cases      $73.00
All State Cases         $120.00
Individual State Cases  $61.00
State and Federal Cases         $120.00
United States Code Annotated   $73.00
Individual State Statutes Annotated    $73.00
Code of Federal Regulations     $66.00
Texts and Periodicals   $244.00
American Law Reports     $120.00
American Jurisprudence 2d       $90.00
Federal Practice and Procedure         $104.00
Journals and Law Reviews        $120.00
All News        $120

The price list also identifies “Per Minute Billing Classifications” which includes Specialty databases ($ 12.45/minute), Premium databases ($ 13.75 per minute), Allfile databases ($ 17.48 per minute), Super Allfile databases ($ 20.98 per minutes), Select databases ($ 23.87 per minute), Super Premium databases ($ 26.17 per minute), Super Select databases ($ 30.97 per minutes), Super-Duper Select databases (if you have to ask you can’t afford it), and Super-Duper Blow-my-Mind databases (priceless).  Okay, I made those last two up.

Westlaw has a terrific feature called ResultsPlus, which suggests additional resources based upon the research queries — often to valuable resources not considered by the researcher.  It’s impressive, and it has its own set of costs:  ResultsPlus Standard ($ 11.42 per minute), ResultsPlus Premium ($ 17.68 per minute), ResultsPlus Allfiles ($ 22.57 per minute), ResultsPlus Super Allfiles ($ 27.75 per minute), ResultsPlus Select ($ 30.98 per minute) and ResultsPlus Super Premium ($ 34.02 per minute).

All of the above charges are to find and view documents.  Printing and/or downloading has its own sets of associated fees.  Under “Line Pricing,” identified in the brochure as the default, “[c]harges to print and download documents range from $0.045 to $0.65 per line.”  Under “Per-Document Pricing (Flat Rate Per Document),” [c]harges to print and download documents range from $5.00 to $50.00 per document.

The brochure also lists separate fees for viewing some images, fees for clipping services, fees for KeyCite Alert, Docket Alert, Transactional Citation Research Charges, Per Minute Citation Research Charges, and Charges for Previewing Documents in the Link Viewer.

I do not mean to focus only on Westlaw.  LexisNexis pricing is similar — I just don’t have a pricing list handy for LexisNexis.  And these are great resources — one reason why I’ll never retire is that I could not give up my personal LexisNexis and Westlaw accounts.  And we law schools do not pay the above prices — we pay a flat rate, for unlimited academic use.  My only beef with West (and other legal publishers) is their annual price increases that far outpace our budget increases (For United States Code and Congressional News, for example, published by West, we’re being billed $ 568.44, a 24% increase over the $ 459 that we paid last year).

Time is money, and both LexisNexis and Westlaw are attorney time time-savers.  Saving an hour of an associate’s time could save the client somewhere around $ 300.00 or more.  But still:  When we share this pricing information with our students, their eyes do grow very wide.

But most law firms, I’m told, have negotiated flat-rate contracts for much of their LexisNexis and/or Westlaw access.

And in my opinion, one cannot perform fully adequate legal research today without access to LexisNexis or Westlaw (or possibly Bloomberg Law).  That’s today anyway.  Tomorrow remains to be seen.

Lawsuit alleges Chadbourne overcharged for computerized legal research

Everything is negotiable.  Most law firms have flat rate contracts with LexisNexis and/or Westlaw.  The databases also have transactional or hourly (more accurately:  minutely) charging.  For example, according to the March 2006 Westlaw Plan 1 Price Guide, to search the ALLSTATES database costs $ 13.86 a minute.  Some firms charge their clients these per minute rates, even if they are paying for the service under a flat rate contract.  If this is not done with the client’s knowledge, it can lead to a dispute, as this story in the National Law Journal reports:

Lawsuit alleges Chadbourne overcharged for computerized legal research

Tresa Baldas

 

. . .

Consumer protection attorney Patricia Meyer filed a suit against New York’s Chadbourne & Parke on March 2 for allegedly overcharging J. Virgil Waggoner, a Texas businessman, by several thousands of dollars for computerized legal research. His bill was roughly $20,000 for the research, she said, but it should have been closer to $5,000. Waggoner v. Chadbourne & Parke, No. BC408693 (Los Angeles Co., Calif., Super. Ct.).Meyer of San Diego’s Patricia Meyer & Associates said that many similar lawsuits are in the pipeline, noting that she has amassed evidence that shows at least a dozen other law firms are overcharging clients for legal research, but not telling them.

. . .

“This appears to be more widespread than you would think,” Meyer said. “Basically what we’re finding is that certain law firms are using Westlaw and Lexis as profit centers, as compared to simply passing along their actual costs to their client….Quite candidly, what we’re finding is the clients really have no idea that this is going on.”

Cancelling LexisNexis and Westlaw

 

I was reading the New York Law Journal.  The April 6, 2009 issue has a front-page story, “Cash-Strapped Lawyers Strive to Slash Costs,” part of their “Hard Times” series, a “series of occasional articles about efforts by solo practitioners and mid-sized firms to weather the recession.”  The April 6 article, by Vesselin Mitev, profiles a number of attorneys, including Manhattan entertainment lawyer Theodore Blumberg, which includes this information:

” . . . Mr. Blumberg said he keeps a watchful eye on costs.  He has gotten rid of his Westlaw and Lexis accounts and switched to a cheaper service.”

The History of CALR, Part 1: More on Thomson West and FLITE Takes Flight

THE HISTORY OF COMPUTER-ASSISTED LEGAL RESEARCH (CALR)

______________________________________________________

First in an occasional series

More on Thomson West Merger and FLITE Takes Flight

********************

This is the first in an occasional and somewhat random look back at the early days of computer-assisted legal research (CALR).  It stems from a post here earlier in the week about a terrific new book by noted antitrust lawyer (and Stanford Law School alumnus) Gary L. Reback, Free the Market!: Why Only Government Can Keep the Marketplace Competitive (catalog record copied below). The very readable book gives an insider look at the merger (Mr. Reback represented LexisNexis) and as Jonathan Zittrain notes on the jacket, “Gary Reback offers a powerful defense for government’s role in protecting market competition. He draws from rich historical examples and his own extraordinary personal vantage point: his victories and defeats at the front lines of the most high-profile antitrust cases of the past two decades.”

Thomson West Merger

In 1997, Mr. Reback took a vacation to Hawaii after he had “spent a year of futility . . . trying to convince the Justice Department to block an anticompetitive merger that would raise the price of hiring a lawyer for just about every consumer of legal services anywhere in America.”

Storytelling for Lawyers and Monopolizing the Law

Chapters 14 (“Storytelling for Lawyers”) and 15 (“Monopolizing the Law”) tell the story of the 1996 merger of Thomson and West, “. . . the largest publishers of court opinions, treatises, and other materials used to do legal research. No other company was even close in terms of market share or customer usage.” And, as an earlier post here suggests, the end result of this merger created a wrecking ball for academic law library budgets. In my opinion absurd and obscene annual price increases was indeed an effect of this merger.

These two chapters trace through some of the very interesting history of legal publishing, electronic and otherwise, from the 1870s to present.

At one point in chapter 15 Mr. Reback states “. . . both Thomson and LexisNexis started charging law schools for online legal research, originally provided free of charge.” I shared this information on the law library directors listserv.

A few directors contested that statement and commented that, to their knowledge, neither Lexis nor Westlaw was ever free; a couple of other directors weren’t so sure and thought that perhaps there were some free installations.  But this comment also elicited a small flood of memories and reminiscences from directors about the very early days of CALR.

Stanford Law Library’s First CALR Terminal (Lexis only)

I myself came to stanford in 1982.  At the time the library had one Lexis terminal, and no Westlaw terminal.  The terminal was the so-called “DeLuxe” terminal, which was a large sit-down consol, reminiscent of the “con” of an early Star Trek starship.  It was located in a room shared with our photocopiers and microforms, both of which were used far more than the Lexis terminal.  For one thing, there was a daily blackout period and we could not access the database between the hours of 11:00 a.m. and 2:00 p.m. There was no downloading of documents, and printing was done laboriously, one screen shot at a time.  Connection was via an internal modem and a phone line paid for, I think, by Lexis.

Dick Danner, from the Duke Law Library noted on the listserv that “the early history of Lexis from an insider’s perspective, with a bit about Westlaw, can be found in: William G. Harrington, ‘A Brief History of Computer-Assisted Legal Research,’ 77 Law Library Journal 543 (1984-85).”

The Air Force Starts Digitizing the Law – FLITE (Federal Legal Information Through Electronics) Database

And then J. Denny Haythorn, Associate Dean of Library and Information Services & Professor of Law at Whittier College School of Law shared this very interesting story about FLITE (reproduced with permission):

In the Law Library Journal article the author refers to the system the Air Force had developed by the late 1960s. The Air Force system was called Federal Legal Information Through Electronics (FLITE) and was operated from the basement of the Air Force finance center in Denver at Lowery Air Force Base.  FLITE had a large staff inputting federal court reports, administrative court reports (e.g., Comp Gen, Board of Contracts Appeals, etc.), US Code sections, CFR sections, and military regulations into databases. There was a staff of research attorneys who received calls from government lawyers for research and they would help formulate searches in the database.  The Finance Center did not use their computer mainframe at night so the searcher would run overnight and be printed.  The research attorneys would call back with the results the next day and sometimes mail the printouts to the requesting attorney.

More powerful minicomputers and the internet simplified the search process to ultimately be more like the commercial services thought FLITE kept the research attorneys for assistance with searches.  The office also continues to maintain unique databases of information use by military lawyers.  FLITE purchased the first PC computers for Air Force legal offices and began a program of law office automation using shareware software (PC Write for example), commercial software, and software specifically written by the office.

FLITE also was an early adopter of CD and DVD technology.  The goal was to have Judge Advocate General attorneys in the field with legal resources for a standalone law office.

The office still exists and is now located with the Air Force Judge Advocate School at Maxwell Air Force Base, in Montgomery, Alabama.  In the 1980s I was one of the research attorneys as they made the transition from batch, overnight searching to real time searches and then user searching directly on the internet.  I also worked on the manuals for some of the software.

Denny will be contibuting more about his experiences as a CALR pioneer, so please stay tuned for later installments of this series.

And here’s the catalog record for Free the Market!

Author: Reback, Gary L., Stanford Law School graduate, J.D.(1974)
Title: Free the market! : why only government can keep the marketplace competitive / Gary L. Reback.
Related e-resource: Publisher description
http://www.loc.gov/catdir/enhancements/fy0906/200804668
Imprint: New York : Portfolio, 2009.
Physical Description: x, 416 p. ; 24 cm.
Note: Signed by the author. CSt-Law
9-d.html

Note: Includes bibliographical references (p. [397]-403) and index.

Contents: Protecting competition — Product distribution –Patent and coypright limitations on competition –
Monopolies and market exclusion — Mergers and acquisitions.Subject (LC): Trade regulation–United States.
Subject (LC): Competition–United States.
ISBN: 9781591842460
ISBN: 1591842468

CALL NUMBER
HD3616 .U47 R136 2009

Monopolizing the Law

From a fascinating, must-read brand new book by noted antitrust lawyer Gary Reback, Free the Market: Why Only Government Can Keep the Marketplace Competitive.

Free the Market: Why Only Government Can Keep the Marketplace Competitive
By Gary L. Reback
Portfolio Books, 2009
*****
Chapters 14, “Storytelling for Lawyers.” and 15, “Monopolizing the Law,” clearly explain how LexisNexis and Westlaw became the market forces that they are today.
From chapter 15:
. . . The West-Thomson merger had precisely the effect that everyone, other than Thomson, the Justice Department, and the judge predicted it would.  Prices for print publications soared.  Thomson started putting fewer pages into each West volume of court cases and charging more for the books.  Price increases for West publications following the takeover exceeded both the rate of inflation and the rate of increases for prices in legal publishing more generally.  One study documented a price increase of over 70 percent for “value added” legal publications (books with supplements) in the four years following the merger.
Prices for online research also climbed astronomically.  Thomson raises rates to private firms each year.  In each of the recent years, Thomson’s charges for online legal research in the West databases have increased roughly 7 percent.  To search the comprehensive West database for state and federal decisions now costs more than $17 per minute.  The federal minimum wage, by constrast, is about $7 an hour.  In addition both Thomson and LexisNexis started charging law schools for online legal research, orginally provided free of charge.  Last year the annual rate increase to law school librarians was roughly 7%, breaking the budget of many university law libraries.

FT interview with Reed Elsevier CEO

The “Monday Interview” in today’s Financial Times is with Sir Crispin Davis, the outgoing chief executive officer of Reed Elsevier, LexisNexis’s parent.

The Monday Interview
Sir Crispin David

Reed’s leader from dusty to digital
The outgoing chief executive tells Andrew Edgecliffe-Johnson how the publisher prospered as others suffered in the internet maelstrom.

According to the piece,

 
Almost three years ago, he decided Reed needed to “raise the bar again”, refining its strategy beyond simply digitising content to embedding it in productivity-enhancing online tools for lawyers, scientists and doctors.  The number of technologists employed by the company has grown from 400 to 4,800 in ten years and the share of revenues coming under the ungainly banner of “workflow solutions” has risen to more than 50 per cent.”