Articles
Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Free and Reduced Cost Legal Research: Options for Minnesota Lawyers

Amid challenging economic times lawyers across the profession are searching for ways to increase their efficiency while maintaining the quality and thoroughness of their work product.  Low-cost alternatives for legal research can be a cost-effective choice but users need to be aware of both their strengths and limitations.

Over the last several years, practicing lawyers’ usage of free and reduced cost legal research databases has exploded. One recent study estimated that 78.7 percent of legal practitioners use these resources at least occasionally, with a majority using them frequently.1 Such use is especially prevalent among younger lawyers with zero to five years of experience; very few report not using free internet research at least at some point in their research process.

A few emerging trends are pushing practitioners toward free internet tools, the most significant of which is an attempt to reduce costs in an increasingly competitive market. As articles have noted elsewhere, clients increasingly view research costs skeptically, leading to lower reimbursements rates for the research costs performed on a case.2 This drive to cut research costs has been especially challenging for small firms and solo practitioners, many of whom employ a flat-rate billing structure that leaves little room for overhead and expensive research.3

Small firm practitioners’ comments on a popular online community revealed several consistent themes.4 Many reported working with tight margins and wanting to find something cheaper than their current commercial research service.  The bigger and more controversial question was whether transitioning from fee-based commercial resources to cheaper or free research tools was possible. On this question, responses were mixed. Many commentators had positive experiences with Google Scholar or bar-association-based systems like Fastcase and Casemaker, claiming they had transitioned with very few problems. Others argued that it was a matter of the area of law—saying, for example, that for business litigation it might be possible, but not for very complicated tax matters. Yet others found that it was nearly impossible—like playing tennis with a ping pong paddle.5

Despite the fact that most law schools in the country will have significantly more students entering small practices than larger firm settings,6 schools still teach research as if an unlimited Westlaw or LexisNexis package will be waiting for graduates as they enter practice.  Hence, many lawyers go into practice lacking the skills to effectively evaluate and use alternative research tools that might be better suited for their practice and their bottom-line. They are fundamentally left without a way to assess whether free research tools are more like a finely tuned tennis racket or a ping pong paddle in their specific practice.

Evaluating Databases

The vast universe of research tools is already too broad to be covered in a single article and continues to expand almost daily. Google Scholar and Fastcase are two prominent alternatives. Fastcase, in a similar fashion to products like Casemaker and LoisLaw, is a research tool sponsored by a number of state bar associations. Fastcase is of particular significance to Minnesota lawyers because the MSBA provides free access as a member benefit. Beyond Minnesota, Fastcase has a retail base of subscribers along with a strong subscriber base of organizations, boasting 25 other state bar associations and a multitude of other legal organizations.7

Fastcase’s scope is broad, rivaling Bloomberg, LexisNexis, and Westlaw in that it has substantial content beyond case law, such as statutes, regulations, and some secondary material. The biggest difference between Fastcase and its pricey competition is that it lacks editorial content, annotations, and strong practitioner-oriented secondary material.

Google Scholar is an entirely free tool that allows anyone to search for case law. The fact that Google is the creator of this project has attracted special interest; some have seen Google Scholar as a resource with potential to knock Westlaw and LexisNexis from the top of the legal research industry.8 Despite this initial promise, to date the platform has had a fairly limited scope. But there is reason to believe it will only grow in functionality and effectiveness in the coming years. Google Scholar is particularly adept at searching for periodicals and case law, providing an easy and convenient way to read and print their material.

Content, Reliability, Clarity, and Cost—these four categories comprise much of what’s important in evaluating databases and will form the framework for the following analysis of the opportunities and limitations of Google Scholar and Fastcase. These categories may also help lawyers evaluate other new tools as they come on the market.

Content

One of the chief considerations when using a legal research tool is the scope and depth of the content it provides.  For example, it is important to know whether your research tool has the primary authority needed to allow you to research and then answer a legal question both competently and professionally.

For case law, both Fastcase and Google Scholar have all of the important reported content, going back quite a while. Fastcase has essentially the same reported content as the leading commercial ventures—with federal case law back to the beginnings of the Federal Supplement, Federal Reporter, and United States Reports. The scope of state law coverage varies, but generally goes back to at least 1950. Google Scholar’s reported
case content appears to go back to at least 1923 for federal district court and appellate cases, 1791 for Supreme Court cases, and 1950 for state appellate and supreme court cases.

One area in which many free platforms failed until relatively recently is in covering the large amount of unpublished content that the courts now generate. One study estimated that a mammoth 80 percent of cases of the the U.S. Courts of Appeals went unreported.9 Westlaw and LexisNexis have capitalized on this content, providing access to a great deal of it and marketing it in such a way as to separate themselves from the free or reduced cost competition. Witness the remarks of a commercial database representative at a recent CLE program, where Google Scholar was mentioned in order to showcase its major limitations, the most significant of which was that it failed to accurately and comprehensively index unreported cases. The big question for practitioners is whether and to what extent this content is important for their practice, especially as federal courts and many state courts (such as Minnesota) have ruled that such opinions are now citable albeit nonprecedential.10

Fastcase and Google Scholar now both perform admirably, although not perfectly, with this unreported case law. Neither tool provides documentation of its unreported content, so testing cases to evaluate their coverage was necessary. Both tools indexed 2008/2009 to current unreported cases from a variety of courts very well. A Fastcase representative reported that 2010 is the cutoff date for such coverage: Before 2010 the coverage is hit-and-miss, depending on the court; coverage after 2010 is said to be complete.11 Fastcase was stronger than Google Scholar across the board, but both still seemed to lack significant case coverage from the Federal Supplement. The upshot is that both systems have a great deal of unreported cases, but there is uncertainty about the coverage before 2009/2010, so practitioners should proceed with caution.

What about other primary authority? This is where Google Scholar starts looking like a useful tool and Fastcase looks like an actual alternative to commercial research tools. Along with case law, Fastcase offers a substantial range of statutory and regulatory material. Fastcase provides coverage of statutes for all 50 states along with the U.S.C. Fastcase also provides session laws and archived editions of codes from many states, as well as the regulatory codes for 35 states (including Minnesota) and the Code of Federal Regulations. For the content that is missing (The Federal Register and statutory and regulatory material for the remaining 25 states), Fastcase provides external links to find this content on the official government website. For example, it points to FDSys (http://www.gpo.gov/fdsys/)for the Federal Register.

Reliability

Another feature of critical importance when assessing a research tool is the extent to which it effectively keeps the primary law current and warns users about potentially bad law.

A weakness of many free and reduced-cost tools in the past was that it was difficult to find whether the database was current to determine whether a case was still good law, which left lawyers in a dangerous position. So how do Google Scholar and Fastcase stack up in terms of keeping current?

FastCase and Google Scholar were evaluated in terms of their handling of cases decided within the last 24-28 hours by the U.S. District Court for Minnesota, the 8th Circuit Court of Appeals, the Minnesota Court of Appeals, and the U.S. Supreme Court. Fastcase was as up-to-date as Westlaw and LexisNexis, indexing cases within 24-48 hours of publication. Google Scholar took longer to update this information: Some cases appeared as quickly as in Fastcase and the commercial databases, while other cases often took a week or two after publication to appear. It is difficult to evaluate how up-to-date information is on Google Scholar because Google Scholar doesn’t identify vendors or indicate how recently its content has been updated. The coverage appears to be reliable, just slightly slower than for other tested sources.

Fastcase’s updating of its specific content, such as statutes and regulations, was variable. The federal material (CFR and USC) was updated weekly. The timing of the appearance of state material varied widely, but was generally within several weeks of the item’s appearance in commercial databases.

Another important assessment of reliability is how well the citator notifies the user about bad law. In the end, however current the cases in a database might be, they are not fully useful unless a citator tool provides effective notice of the effects of the new cases on prior case law. Effective citators are expensive to develop and continuously update, requiring substantial human editorial effort and expertise. Only commercial services can afford such a costly but important tool.

While there is no real substitute for having the judgment of human editors, some new algorithms have made the process of providing a basic citator manageable for free services. Both Fastcase and Google Scholar have such tools that look for references and citations to a particular case. Recently, Fastcase introduced a tool called “Bad Law Bot” that looks for and alerts the user to extreme negative history.12

Google Scholar’s citator is similar to Westlaw’s “Citing References” and LexisNexis’ “Citing Decisions” (part of its Shepard’s) tools, providing a listing of cases that cite a specified opinion. However, unlike Westlaw or LexisNexis, Scholar doesn’t provide the analysis, depth of treatment, and other editorial material.  Instead, the “How Cited” feature provides three options, all of which are computer-generated rather than editorial. First, in “How this document has been cited,” Google Scholar provides the most common language that courts employ to explain the central holding of a case, and Google Scholar actually does a good job finding this language and ranking it. For example, explaining that Employment Division v. Smith,13 a famous free exercise case, stands for the principle “that neutral, generally applicable laws may be applied to religious practices, even when not supported by a compelling government interest.”14 This concise summary of the holding would be helpful both for the new researcher or an experienced litigator looking for the common description to cite in his or her brief. Second, Scholar provides “Cited By” which, like Citing Reference or Citing Decisions, brings up a comprehensive listing of cases and scholarly articles that cite the parent case. Here, it is possible to assess whether your case is good law, but only by looking at the excerpt of each case listing. There are no easy flag tools or editorial comments that will help you evaluate the history of the case. The only options for filtering the results are date and jurisdiction. Lastly, in “Related Documents,” the system pulls cases that have jurisdictional and subject matter similarities to the cited case. For the most part, the Related Documents tool picked the relevant case series. For Smith, it pulled the iconic cases of free exercise, including Sherbert, Yoder, and Lemon.

All in all, Google Scholar’s citation tools are interesting even if limited. But for a lawyer who wants to quickly find bad law, the tools are potentially a deal breaker, especially for older cases that have substantial citation history. For example, Employment Division v. Smith brings up almost 10,000 citing references. The time and effort that could be expended looking through case summaries would almost certainly cut deeply into productivity.

On the other hand, Fastcase has recognized and attempted to rectify lawyers’ frustrations by incorporating a basic, red-flag system into its citatory, which is called “Authority Check Report.” The Authority Check Report has three main functionalities.  The one that practitioners might want to notice right away is called Bad Law Bot, which searches through the databases of cases to find negative citing references. Bad Law Bot performs about as well as can be expected for an algorithmic system with no human editors—accurately ferreting out sometimes subtle case law that discusses your case extremely negatively. Really, all the tool is doing is looking through the database for words like superseded, abrogated, overruled, etc. within so many words of your citation. There is a potential risk it doesn’t pick up several scenarios, such as a case being overturned but no court opinion citing to it yet, a statute superseding a case but no court opinion yet mentioning that fact, or very harsh criticism but no overturning. Abood v. Detroit Board of Education15 is an example of the last situation.
The case has not been overruled yet but it has been deeply criticized and exception-ridden as shown by the Harris16 and Knox17 cases. Bad Law Bot will not find that negative history for Abood.

In addition to Bad Law Bot, Fastcase provides a “Citing Law Reviews” tool that provides law review articles that mention your case. This is part of a larger HeinOnline/Fastcase integration that gave Fastcase access to Hein’s expansive library of legal periodicals while providing HeinOnline with the primary law documents in Fastcase.  That being said, the list of law review articles pulled up is very unwieldy, hard to filter down, and slightly difficult to view as slow-loading PDF documents. Lastly, Fastcase offers “Citing Cases,” basically a listing of all cases that cite the parent case.  This is very similar to the system described in Google Scholar—organized by date with an option to filter by jurisdiction.

Clarity/Accuracy

Perhaps an under-appreciated aspect of these tools is the clarity of their interfaces and the accuracy and relevancy of their recall. A research tool may have all the best content with top-notch accuracy, but if the interface is clumsy and hard to use, it will never get off the ground. It will become the Zune of legal research tools.

Google, in particular, has always labored to create very basic, easy-to-use interfaces. Google Scholar is no different in that respect. Its search engine works essentially the same way as a standard google search, with a large search bar and results sorted by some jurisdiction limiters.  As a natural language search, Google Scholar works relatively well, providing results sorted by relevancy based on the court, the closeness of search terms, and the number of times the opinion is mentioned. The filters on the left side of the page are both easy to use, and self-explanatory. For those who prefer more detailed Boolean searching, there is also an Advanced search feature that provides ALL, OR, and NOT options. So while the system is basic and the content is still limited, it is very easy to use for anyone even vaguely familiar with Google. At the point that Google Scholar expands to include other kinds of primary sources, it will be interesting to see if Google can configures Scholar to maintain their basic but effective interface.

Possibly because Fastcase has such expansive content, it is slightly more cluttered but it is still mostly effective and self-explanatory. At the point you search a submenu like “Cases,” the system effectively informs you about the coverage of your search, the Boolean operators that might be of use, and how to filter down searches by jurisdictions and dates. The search results seem slightly chaotic to a first-time user, with a relevance percentage on the side along with two separate numbers displaying results of an “Authority Check” in these results and in the entire database.

The relevance appears to be closely related to how often a particular case with your search terms has been cited by other cases with your search terms. As a measure of relevance, this is hit-and-miss. If you are looking for the most important case with your search terms in it, it does very well. If you are looking for a rather obscure unpublished case, your result often will be extremely far down the list (necessitating that you search by docket number or specific phrase). The HeinOnline content has so far been hastily integrated. Case search results now include a banner-like ad on the side providing HeinOnline Suggested Results, which if anything is cluttering. The integration within the Authority Check has been similarly frustrating.

Cost

While neither Google Scholar nor Fastcase (at least for members of the Minnesota State Bar Association) have subscription or per usage costs, it is important to consider more than upfront costs. While the free price point of these services is undoubtedly attractive, the most important resource of any lawyer is his or her time. Attorneys considering these options should take care not to be penny wise and pound foolish, saving money upfront on research cost only to expend a great deal of time and energy searching platforms that don’t conform to your research needs.

The answer to whether these free or reduced-cost platforms suit your research needs depends on your unique circumstances. Before switching or supplementing your current services with a free or low-cost service, you may want to ask yourself the following questions:

  • How much secondary material (treatises, practitioner’s materials, form books) are you using? Much of the value of commercial research tools is their expansive secondary material. This might be more important for new lawyers in an unfamiliar area than to someone who has practiced for a decade.
  • How often do you use the annotations and editorial enhancements material provided by commercial vendors? Remember the codes in Fastcase are not annotated beyond having algorithm-driven cross references.
  • Are you comfortable relying on the Google and Fastcase citators for checking whether your case is good law? Failure to understand these tools, and their potential shortcomings, is extremely dangerous ethical and liability territory for a lawyer.
  • Lastly, ask yourself whether you are comfortable with the interface and search intricacies of a new research tool before you make the transition. Some people have the technology skills to transition quickly and effectively between systems, while others might prefer their tried and true method that they have cultivated over time.
Conclusion

Both Fastcase and Google Scholar provide exciting opportunities to lawyers who are looking for free or reduced-cost tools. Unlike earlier generations of free tools that were often more novel than practical, both tools have the potential to be useful in law practice. Fastcase, in particular, provides all the primary law that most lawyers will need, but without the significant editorial and secondary material provided by commercial vendors. In many ways, Fastcase is a better tool than Google Scholar for practicing lawyers because of its expansive content, speedy updating, and reliable indexing. Check out both tools today and find out if they might be useful (or not) for your practice.


Nick Farris received his BA from St. Mary’s College of California and his JD/MLS from Indiana University Bloomington. He teaches legal research and provides reference services to law school faculty, students, and staff at the University of St. Thomas Law School. He is a member of both the Minnesota Association of Law Libraries and the American Association of Law Libraries. 


Notes

1 ALL-SIS Task Force on Identifying Skills and Knowledge for Legal Practice, A Study of Attorneys’ Legal Research Practices and Opinions of New Associates’ Research Skills 32 (2013).

2 Rachel M. Zahorsky, “Firms Wave Goodbye to Billing for Research Costs,” ABA Journal (11/14/2012), http://www.abajournal.com/lawscribbler/article/firms_wave_goodbye_to_billing_for_research_costs/

3 Robert E. Hirshon, “The Billable Hour is Dead. Long Live…?” 30 GPSOLO 22 (2013), available at http://www.americanbar.org/publications/gp_solo/2013/january_february/billable_hour_dead_long_live.html

4 “Law Forum,” JDUnderground, http://www.jdunderground.com/all/ (last visited 09/04/2014).

5 “Can you be a real firm without Lexis or Westlaw?” JDUnderground (04/18/2013), http://www.jdunderground.com/all/thread.php?threadId=44629

6 The Association for Legal Career Professionals, Class of 2013 National Summary Report (2014), available at http://www.nalp.org/uploads/NatlSummaryChartClassof2013.pdf

7 “Bar Association Subscribers,” Fastcase.com, http://www.fastcase.com/barmembers/ (last visited 09/04/2014).

8 Clifton Barnes, “Google Scholar: How Will It Change the Legal Research Landscape?” 34 Bar Leader 6 (2010).

9 Administrative Office of the United States Courts, Judicial Business of the United States Courts 39 tbl. S3 (2002).

10 Fed. R. App. P. 32.1(A); Minn. Stat. §480A.08 (2013).

11 Interview with August Conwell, FastCase, 07/01/2014.

12 Deborah Letz, “Meet our newest team member, Bad Law Bot,” Fastcase.com (05/29/2013), http://www.fastcase.com/badlawbot/

13 494 U.S. 872 (1990).

14 Guam v. Guerrero, 290 F.3d 1210, 1215 (9th Cir. 2002).

15 431 U.S. 209 (1977).

16 Harris v. Quinn, 134 S. Ct. 2618 (2014).

17 Knox v. SEIU, 132 S. Ct. 2277 (2012).

 

 

Leave a Reply

Articles by Issue

Articles by Subject