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Research Right Using Books and Bytes
Research is a fundamental part of legal practice. The percentage of lawyers using print resources for research is decreasing. The internet transformed legal research. Tennessee courts recognize the internet as a "primary tool for legal research." Electronic sources are updated faster than print and some information is available exclusively online. Yet, some print resources grasp legal concepts that computerized searching can miss. Attorneys should examine both print and electronic sources to provide competent representation.
The ABA Model Rules of Professional Conduct address competence in research. Rule 1.1 provides, "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." The comments to Rule 1.1 explain "[c]ompetent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners." While there is no set standard for what constitutes competent research, poor research can lead to sanctions or suspension. Failure to explore both print and digital resources could result in not only embarrassment but also exposure to a malpractice suit.
The digitization of data may have changed the way information is accessed but it did not change the content of the information. No matter whether one searches Westlaw, LexisNexis or Fastcase, the core data of the court opinions, statutes and regulations remains the same. Statutes, cases and codes remain the primary law. Legal periodicals and treatises are still stellar secondary sources. Search engines are still the best way to locate free legal materials on the web. Researchers need to evaluate internet resources just as they would print resources: making sure that the source comes from a reputable publisher and contains current, correct, objective content.
Tennessee Administrative Law
Following the lead of other governments, Tennessee publishes primary law on the web. Tennessee agencies publish announcements; emergency rules; proposed rules; public necessity rules; rulemaking hearing rules; notices of rulemaking hearing; notices of hearing to solicit comments and wildlife proclamations in the Tennessee Administrative Register (T.A.R.). The T.A.R. is no longer published in print. The Tennessee Secretary of State publishes the Rules & Regulations on its website instead of in print. Some agencies publish administrative decisions on the agency website. Expect the trend to directly publish administrative materials on agency websites to continue. Attorneys failing to explore agency websites will miss citing legal authority that judges will expect to see.
Tennessee Code and Case Law Code
The Tennessee legislature provides current and past versions of enacted legislation at its website. The Tennessee legislature links to the free web version of the Tennessee Code by Michie, the print publisher for the annotated code. The downside to the internet version of the code is that it lacks the annotations provided by commercial sources. The annotations detail not only the legislative history but provide citations to cases, law reviews and other resources. Further, lingering questions remain as to whether a free version of the internet code is the "official" version for citation purposes. Either supplementing the internet code with an online search in a commercial source such as Westlaw or LexisNexis or with the official print code is necessary for comprehensive research.
Specific statute citations can be quickly located using a free internet code. Locating the statutes if there is no specific citation is still easier with a print index. Westlaw and LexisNexis provide tables of contents and indexes to statutory codes. Should none of these tools be available, use a keyword search to locate statutes. Since statutes contain several of the same words, it is difficult to quickly locate a specific section. Use as many synonyms and related words or consider performing a case law keyword search to locate a statutory reference.
Traditionally, citing unpublished opinions did not find support with courts. The no-citation rules were a way to level the playing field because some lawyers had better access to unpublished opinions. The Sixth Circuit allowed citations when no published opinion adequately addressed the same issue as the unpublished opinion. The United States Supreme Court changed this practice via Rule 32.1 by permitting the citation of unpublished opinions. Although the weight given to an unpublished case is not clear, it is possible that the failure to research unpublished opinions could result in a malpractice claim. The ease of access and the rules allowing citation mean that unpublished opinions should be searched in order to provide all "relevant" authority to a tribunal.
Cases are compiled in print in case reports or reporters. Case law is available electronically on commercial databases like Westlaw, LexisNexis, Fastcase and individual court web pages. Electronic databases do not archive large amounts of data. Therefore when searching online sources, it is very important to determine the scope of the database content in order to make sure that the archive is sufficient for substantial research projects. Cases can be posted on court websites before being available in print making changes in the law immediately available. Attorneys need to find a way to monitor the law such as using an electronic clipping service to stay abreast of changes.
Courts opinions can be searched by party name, keyword or docket number depending on how the court website is structured. The Administrative Office of the Courts provides a simple way to locate Tennessee court websites. The National Center for State Courts links to other state court websites. Court databases do suffer limitations. Those limitations can be avoided or, at least minimized, by a search engine like Google, which permits site-specific searches. Select the "Advanced Search" from the Google website. Type the court's web address into the "Search within a site or domain" box on the Advanced Search page. Use the search boxes to enter the query to locate opinions on a particular point. For those researchers who like using a one-size-fits-all approach to online searching, this method provides the same searching technique for each court opinion database.
Commercial databases add features that allow easier access to Tennessee case law than a court website. Fastcase is provided by the Tennessee Bar Association to its members at no charge. Philip Rosenthal and Edward Waters created Fastcase after a client requested that case law be accessed from the court websites to avoid the high cost of using commercial databases. Fastcase uses computer algorithms to perform all the case indexing that is done by human editors at Westlaw and LexisNexis. Fastcase does not provide the search flexibility of Westlaw and LexisNexis as some Tennessee Bar Association members have noticed. Yet, the idea of making primary law available free of charge is gathering steam. Even Westlaw and LexisNexis are providing free legal research options at their internet sites Findlaw and LexisOne. The Public Library of Law (PLOL) debuted this year with federal cases that Fastcase provided to Public.Research.org plus appellate cases from all 50 states from 1997 forward. In addition, PLOL has statutes from all states, court rules from all states, regulations from selected states, the United States, the Code of Federal Regulations and federal court rules. There is no cost to use PLOL. PLOL lacks the robust search features of Fastcase and other commercial research services but provides free research. As developers continue to improve the technology, it is possible that the search engine could effectively replicate the human analysis used by Westlaw and LexisNexis.
The major difference between databases appears in keyword searching. Failure to follow the instructions for using the database will result in inferior search results. Additionally, constructing a keyword search without including all possible synonyms for the word increases the possibility of missing important cases. It is extremely difficult to capture legal concepts that do not contain unique keywords. The print digest finding tool captures legal concepts better than searching online when the concept does not contain unique keywords or if the case law pre-dates the content of the online database. Searching Tennessee case law by topic is best performed by using both the print digest and the online databases to ensure a complete research project.
Updating Code and Case Law Code
Print pocket parts provide an easy update for codified statutes. Statutes can be updated online using Shepards or Keycite. Those without access to commercial online citators can use the Tennessee Legislature website to determine if current legislation impacted their statute.
Lawyers regularly use Shepard's or KeyCite to ensure a case has not been reversed or overruled. PreCydent, a free legal research engine, announced in April that it was working on developing a citator service to allow researchers to check case history. Low-cost research providers such as Fastcase also provide a citator service. Updating case law means still using Shepard's or KeyCite to definitively determine if a case has been expressly reversed, overruled or otherwise impacted by subsequent authorities.
Secondary materials are just becoming available in electronic form. Westlaw and LexisNexis have legal encyclopedias, Restatements and a number of treatises in their secondary materials databases. Companies are beginning to offer ebook versions of legal treatises. Amazon.com sells legal titles for its Kindle device. Students currently use ebooks for research. Casebook publishers are examining ways to provide law students with digital casebooks that their professors can customize. Publishers are developing technology to upgrade electronic devices with features that print sources provide such as margin note taking. Expect the move to more paperless secondary source research as these technical problems are resolved to make ebooks user-friendly. Counsel can use Google books, a free book excerpt database, to become comfortable with electronic book research.
At this time, it is extremely difficult to find free access to a secondary source on the web. Access to state-specific secondary sources is rare. Courts, however, are faced with all sorts of resources from the web. Wikipedia, a free internet encyclopedia, is an example of one of those resources. Wikipedia can be edited by any person without credentialing, which means that the quality of the information is suspect. Counsel citing to sources like Wikipedia without investigating other available sources on the web containing a higher information quality could be subject to violating Model Rule 1.3. Model Rule 1.3 requires lawyers to exercise "reasonable diligence and promptness in representing a client." Failure to pursue other quality resources is the same as conducting poor research when those sources are as easily accessible through the same medium.
In the past, locating law review articles meant finding a law library with both indexes and sufficient holdings. Since Tennessee's law libraries are situated in the state's major cities, access to this secondary source proved difficult to those located in remote areas of the state. Commercial databases such as Westlaw, LexisNexis and HeinOnline evened the playing field by providing keyword access to law review articles eliminating the need to use print indexes to access a print collection of articles. Some practitioners in the state do not have the budget for these commercial resources. Now, through the web, law review articles, like case law, can be accessed without a print index or without an online charge. Lawreview.org is a free service from the Coalition of Online Law Journals. The researcher can search online law journals or sign up for a free e-mail abstract service.
Free treatises on the web are still practically non-existent. Cornell's Legal Information Institute comes closest to providing a sufficient broad overview of a legal topic. Cornell provides a topical law guide that links to source material, including titles to major treatises. Cornell's Legal Information Institute also offers WEX, a wiki created site. Unlike Wikipedia, WEX requires that an author/contributor be a qualified expert. The site defines a qualified expert as one who has demonstrated expertise in a particular area of law. Topics are arranged in alphabetical order containing citations to applicable statutes and judicial decisions.
A researcher approaching a new area of the law may not know which source to consult. Rather than running numerous searches through search engines, search a source like Zimmerman's Research Guide. Zimmerman's Research Guide, created by Andrew Zimmerman, is an "online encyclopedia for legal researchers." LexisNexis makes Zimmerman's available free of charge on its website. Zimmerman's offers both browsing and keyword searching for hyperlinked encyclopedia entries on various legal topics. Zimmerman's includes references to print and online materials.
Forms, while not considered a standard secondary source, are one item that lawyers consult on a regular basis. Forms, like treatises, are hard to find free on the web. JD Supra, a new sharing source, aims to bring legal documents free to the public. JD Supra allows lawyers to post court docs, filings, articles, client alerts and corporate documents. The Securities and Exchange Commission's free text search is another source for quality corporate forms. The search technology allows the ability to access both the text in the body of the filing as well as the exhibit. A carefully constructed search can produce tailored legal documents located in securities filings. These documents, while specific to certain company transactions, can be substituted for forms by modifying the deal facts to a client's facts.
The popular search engines Google and Yahoo do an excellent job of retrieving sources on the web. Legal search engines use a methodology that eliminates or, at the very least, minimizes non-legal sources from the search results. Counsel using legal search engines connect to quality legal resources faster than using general search engines.
PreCydent is a legal search engine that experts consider more reliable than the existing legal research services for finding the most authoritative legal information. Still in beta testing, expect PreCydent to continue to improve.
Justia uses Google to power its legal web search engine. Justia combines both the directory arrangement familiar to Yahoo users with the search rankings familiar to Google users. Justia is being developed by Findlaw's former founder and CEO, Tim Stanley. Justia's mission is to provide legal information to users free of charge. Justia combines several forms of computer technology to allow users to not only locate information but also to track information.
If searching the web is too time consuming, consider consulting the state law library websites. The Tennessee law libraries provide a well-organized list of links to Tennessee legal resources on the web. The Joel A. Katz Law Library provides links to Tennessee legal research sources, including the county level. The Cecil C. Humphreys School of Law Library and The Alyne Queener Massey Law Library provide links to Tennessee law and focus on local resources for the law schools' geographic region.
Although there is no firm definition for Web 2.0, the key attribute is user participation: both contribution by users and sharing as well as collaboration or networking between users. Blogs and podcasts are two Web 2.0 tools popular with the legal profession.
Blogs can be seen as another form of legal editorial and scholarship. Lawyers consult blogs on a regular basis. Justia's Blawg Directory contains around 3,332 law related blogs. Blogs provide direct access to legal experts and to judges who are blogging. Blogs immediately highlight current legal trends. Comments posted to a blogger's entry can add assist in understanding the context of a legal trend.
Podcasts include lectures, interviews and expert commentary. Podcasts can be downloaded free from the web. Podcasts are extremely popular in education and, for the legal researcher, an excellent way to join lectures by law professors.
Legal expert blogs and podcasts provide insight that cannot always be found in legal literature. Blogs and podcasts can be easily located by using a search engine such as Google Blog search or Justia. Lawyers are adopting Web 2.0 slower than other professions.
Therefore, it may not be as necessary to consult these resources for every project. However, these resources would definitely enhance understanding of legal trends.
Electronic data can be provided at a low cost to millions of readers. Online research, as a result, is here to stay. Publishers publish secondary sources best in print form but the stage is being set for electronic books. Until online publishers completely replicate print features, Tennessee lawyers should combine the very best of the print and electronic formats to thoroughly complete a research project.
The number of formats can paralyze some researchers from starting or sidetrack others from producing a comprehensive research project. Despite whether data is print or digital, making sure that the information is being provided by a reputable publisher is imperative to avoid violating ethical responsibilities. Taking the time to verify the authenticity of the source is very important when researching material online; especially the material on the web. Researchers should focus on the legal research strategy to ensure coverage of primary sources. After building the proper foundation, researchers should update all the primary sources to ensure correct, current content.
Ignoring online materials is no longer an option as governments choose digital publishing and courts publish judicial decisions on their websites. Attorneys must remain abreast of technological changes in order to remain competent. Attorneys who fail to familiarize themselves with online research could expose themselves to malpractice suits. Similarly, attorneys researching exclusively online could miss resources not included in the database. Publishers are attempting to add archived information to their databases but counsel should be aware that most online coverage does not always contain data before the 1990s.
Although strides in technology are attempting to replace human editing, the task is not yet complete. Print and online resources each play an important role in researching Tennessee law. Blending the best of each format ensures competent, comprehensive research.
1. Andrews v. Bible, 812 S.W.2d 284, 288 (Tenn. 1991). ("[attorney] must research the law unless he is certain he knows it").
2. American Bar Association, Legal Technology Resource Center, Survey Report: Online Research Trend Report 12-15 (2006).
3. See Chapman v. Bearfield, 207 S.W.3d 736, 740 (Tenn. 2006).
4. Increased use of online resources is cited as one of the reasons for closing the Tennessee Supreme Court law libraries. Randall Higgins, "Tennessee Shuts Public Law Libraries," Chattanooga Times Free Press (Dec. 22, 2008) available at http://www.timesfreepress.com/news/2008/dec/22/tennessee-shuts-public-la...
5. Model Rules of Prof'l Conduct R. 1.1 (2007).
6. See Office of Disciplinary Counsel v. Henry, 664 S.W.2d 62 (Tenn. 1983)(lawyer suspended from practice of law for two years due to failure to learn rules, prepare and research).
7. Hill v. Moncier, 122 S.W.3d 787 (Tenn. 2003)(client brought legal malpractice claims against his attorneys. One count in the complaint alleged the attorneys' failure to research).
8. Claire M. Germain, "Legal Information Management in a Global and Digital Age: Revolution and tradition," Law Libr. Resource Exchange (Aug. 27, 2007), http://www.llrx.com/features/legainformationmanagement.htm
9. Richard J. Matthews & Mary Alice Baish, State-by-State Report on Authentication of Online Legal Resources (2007), available at http://www.aallnet.org/aallwash/authen_rprt/AuthenFinalReport.pdf (last visited Oct. 6, 2008).
10. Tennessee Administrative Register, http://www.tennessee.gov/sos/pub/tar/index.htm (last visited Sept. 11, 2008).
11. Per Tennessee Secretary of State as of Sept. 15, 2004, this publication is no longer available in print.
12. Tennessee Rules and Regulations, http://www.tennessee.gov/sos/rules/index.htm (last visited Sept. 11, 2008).
13. Tennessee Ethics Commission, http://tennessee.gov/sos/tec/opinions.htm; Department of Insurance, http://tennessee.gov/commerce/insurance/InterpretiveOpinions.html (last visited Sept. 8, 2008).
14. Mary Alice Baish, Assoc. Washington Affairs Rep., American Ass'n Law Libraries, The Future of Primary Legal Resources on the Web, Presentation at the Back to the Future of Legal Writing Conference 15 (May 18, 2007), available at http://www.kentlaw.edu/academics/lrw/future/handouts/baish%20powerpoint.pdf .
15. Tennessee Code, available at http://www.michie.com/tennessee/ (last visited Oct. 10, 2008).
16. Richard J. Matthews & Mary Alice Baish, State-by-State Report on Authentication of Online Legal Resources 33 (2007), available at http://www.aallnet.org/aallwash/authen_rprt/AuthenFinalReport.pdf (last visited Sept. 6, 2008).
17. Patrick J. Schiltz, "Much Ado About Little: Explaining the Sturm Und Drang Over the Citation of Unpublished Opinions", 62 Wash. & Lee L. Rev. 1429, 1435-1436 (2005).
18. 6th Cir. R. 28(g); Robert Reagan, "Citing Unpublished Federal Appellate Opinions Issued Before 2007"(March 29, 2007) available at http://www.uscourts.gov/rules/Unpub_Opinions.pdf .
19. Howard Brashman, "To Cite or Not to Cite Unpublished Opinions", Law.com (March 6, 2006) available at http://www.law.com/jsp/article.jsp?id=1141380315071; Paul Mark Sandler, "Citing Unpublished Opinions" Raising the Bar (May 4, 2007) available at http://www.shapirosher.com/news/Citing_Unpublished_Opinions.htm.
20. See Eady v. State, No. E2002-0311-CCA-R3-PC, 2004 WL 587639 (Tenn. Crim. App. October 11, 2004) at *2, *4, *7 (court examined whether counsel's performance was deficient for failing to review a recent decision which would have allowed him to recognize an improper jury instruction. The attorney did not have access to an electronic or internet research database).
21. Administrative Office of the Courts, http://www.tsc.state.tn.us/ (last visited December 15, 2008).
22. National Center for State Courts, http://www.ncsconline.org/ (last visited Sept. 26, 2008).
23. Daniel Fisher, "The Law Goes Open Source," Forbes (June 30, 2008) available at http://www.forbes.com/forbes/2008/0630/070.html?partner=email
24. TBA Link Message Board, http://tba2.org/pipermail/tbalink-talk/2008-February/007573.html (last visited Sept. 26, 2008).
25. Associated Press, "Web's Largest Free Law Library Opens to the Public" (Feb. 13, 2008) available at http://www.prnewswire.com/cgi-bin/stories.pl?ACCT=104&STORY=/www/story/0...
26. John B. West began West Publishing in 1872. One of the features of the West system is the key numbers assigned by editors to organize legal issues by topic. Thomson West, Historic Highlights, http://west.thomson.com/about/history/ (last visited Oct. 19, 2008).
27. Keycite was created by Thomson West in 1997 to compete with Shepards, which is exclusively available on LexisNexis. See Thomson West, What is Keycite? http://west.thomson.com/westlaw/advantage/keycite/ (last visited Oct. 19, 2008).
28. See Michelle M. Wu, "Why Print and Electronic Resources Are Essential to the Academic Law Library", 97 Law Lib. J. 233, 248 (Spring 2005).
29. PreCydent, http://www.precydent.com/ (last visited Sept. 26, 2008).
30. Amazon.com, http://www.amazon.com (last visited Oct. 19, 2008)(access by selecting Kindle; Kindle Books; Nonfiction; Law).
31. Wired.com, http://blog.wired.com/business/2008/09/report-ebooks-a.html
32. Douglas S. Malan and Amanda Bronstad, "Will Bulky Legal Casebooks Become Past History?" The Connecticut Law Tribune (October 8, 2008) available at:http://www.law.com/jsp/article.jsp?id=1202425099908 .
34. Wikipedia, http://en.wikipedia.org (last visited Oct. 2, 2008). English Mountain Spring Water Co. v. Chumley, 196 S.W.3d 144 (Tenn. Ct. App. 2005)(finding that Wikipedia does not constitute persuasive authority); Essex Ins. Co. v. Fidelity & Guar. Ins. Underwriters Inc. No. 07-1803, 2008 WL 2497700 (6th Cir. 2008); Sedrakyan v. Gonzales, 237 Fed. Appx. 76 (6th Cir. 2007).
35. Model Rules of Prof'l Conduct, R. 1.3 (2007).
36. Lawreview.org. http://www.lawreview.org/ (last visited Jan. 7, 2008).
37. Cornell Univ. Legal Info. Inst., http://www.law.cornell.edu/ (last visited Sept. 26, 2008).
38. Cornell Univ. Legal Info. Inst., Wex Main Page, http://topics.law.cornell.edu/wex (last visited Jan. 7, 2008).
39. LexisNexis, Zimmerman's Research Guide, http://www.lexisnexis.com/infopro/zimmerman/ (last visited Oct. 10, 2008).
40. JD Supra, http://www.jdsupra.com/ (last visited Oct. 10, 2008). Anne Eisenberg, "Lawyers Open Their File Cabinets for a Web Resource," New York Times (April 27, 2008) available at http://www.nytimes.com/2008/04/27/technology/27novel.html
41. Securities and Exchange Commission, http://www.sec.gov (last visited Oct. 10, 2008).
42. PreCydent, http://www.precydent.com/ (last visited Dec. 17, 2008).
43. Justia, http://www.justia.com/ (last visited Oct. 10, 2008).
44. Justia, http://company.justia.com/about.html (last visited Dec. 17, 2008).
45. Joel A. Katz Law Library, http://www.law.utk.edu/library/tnres.htm (last visited Oct. 10, 2008).
46. Cecil C. Humphreys School of Law Library, http://www.law.memphis.edu/
Library/LegalLinks.htm (last visited Oct. 10, 2008); The Alyne Queener Massey Law Library, http://law.vanderbilt.edu/library/law-on-the-web/index.aspx (last visited Oct. 10, 2008).
47. Nick Langely, "What Does Web. 2.0 Constitute?" Computerworld (Feb. 1, 2008) available at: http://www.computerweekly.com/Articles/2008/02/11/229337/web-2.0-what-do...
48. Thomson West, Law Professor Blogs, http://www.lawprofessorblogs.com (last visited Oct. 7, 2008).
49.Technology Resource Center, Survey Report: Online Research Trend Report 12-15 (2006).
50. Justia, Blawg Search, http://blawgsearch.justia.com/category.aspx (last visited Dec. 18, 2008).
51. Jonathan Salzman, "Off the bench the judge blogs her mind," The Boston Globe (May 27, 2008) available at http://www.boston.com/news/local/massachusetts/articles/2008/05/27/off_t...
52. Edward A. Abrams, "Lawyers Slow to Adopt Cutting Edge Technology," ABA Journal (Aug. 29, 2008) available at: http://abajournal.com/news/lawyers_slow_to_adopt_cutting_edge_technology
RACHEL FISHER is an associate attorney with the Scenic City Legal Group located in Chattanooga. She earned her Bachelor of Science from the University of Tennessee, her Juris Doctorate from the Cumberland School of Law and her Master of Science from Simmons College. Ms. Fisher served as an adjunct legal research professor with the Charleston School of Law in Charleston, South Carolina and the National Center for Paralegal Training in Atlanta, Georgia.