My Shingle : MyShingle : Solo and Small Law Firm Management and Marketing

To live in an era of wish fulfillment is an amazing thing.  That's exactly how I felt yesterday when I downloaded Fastcase's just released and 100 percent FREE legal research app for the iphone.  Yes, I can now search a full database of state and federal cases and statutes right on my phone for no cost.

  Granted, the Fastcase free app isn't WestlawNext.  But when you're a lawyer on a budget or working on the fly, sometimes good is even better than good enough, particularly when that good thing transforms possibility into practice.

Here's what I mean.  Back in 2001, I was using technology in my practice -- or at least as best as I could.  By then, I'd had email, a cell phone and website since the mid-1990s and MyShingle was under development.   And yet, as much as I was able to do internally, I was frustrated because I couldn't fully share the benefits of my tech savvy with all of my clients because they lacked access.  And with easy mobility still a few years down the line (e.g., wireless), I felt limited in what I could do on the road.   I wrote about my experience in  the Washington Legal Times entited Bridging the Gap:  Using Technology to Serve Clients Who Aren't Up to Speed (full article is after the jump - wow was it dated!) and concluded with my wish for the future:

The ways I use Internet applications to serve my solo law practice's small clients reminds me much of the way I use my microwave oven for preparing my family's meals.

For starters, both Internet and microwave embellish form rather than substance: The microwave doesn't make me a better cook, and sadly, the Internet has not transformed me into a smarter or shrewder lawyer. But just as the microwave allows me to operate as an at-home, short-order cook and quickly heat up and serve a variety of meals, the Internet affords a solo practitioner such as myself a means to respond to my clients' diverse and unpredictable needs with the efficiency of a large firm at a fraction of the staff and cost....

As far as technology has taken my firm, I still eagerly anticipate the future when Internet technology will not just enable us to serve clients more quickly, but to reach out to clients who would otherwise not be served at all. And the day is not far off when a lawyer could take a laptop (or Palm Pilot), a dependable wireless connection, and a small printer to the streets and homeless shelters and dispense legal advice to clients in need on the spot, check the status of a client's Social Security disability benefits, or print out forms for food stamps.

Every client would get an answer right away; there would be no lag time in following up; and attorneys would not lose track of clients because the clients have no telephone or address where they could be contacted, a problem I encountered time and time again in the days when I served as a volunteer lawyer at a homeless shelter. Granted, any responses provided would be rushed and basic. But just like a microwave supper, it certainly beats going without.

Now,  I realize that I could accomplish much of what I wished with a laptop and a wireless card.  But Google Legal and now Fastcase (which for the record, has a much more reliable database than GoogleLegal and as such, couldn't be used for serious research) completes the equation with free legal research that's fully mobile.  In fact, I can now surreptitiously review cases while waiting for a case to be called in court.

I'm not suggesting that these new tools substitute for the hard core, disciplined legal research and analysis that lawyers do.  Still, I can't deny that the ability to respond quickly and in rudimentary manner to a legal question with a device that fits in my pocket is thrilling -- especially when it carries with it the kernel of the possibility that just maybe I will witness the expansion of meaningful access to justice in my lifetime.

[Read below the jump for full text of Bridging the Gap]

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Earlier this week, I traveled to Thomson Reuters/West's headquarters in Eagan, Minnesota to preview, along with a group of other bloggers, a demonstration of the next generation of Westlaw, WestlawNext (go to the end of post for a round up of coverage).  Though originally, I'd intended to comment on the product from the solo/small firm perspective, my friend and colleague Lisa Solomon covered that angle fairly well in her blog post, Product and Pricing.   Instead, I'll focus my attention on how WestlawNext works for lawyers with a highly specialized, regulatory based practice like mine.  Honestly, it's not all that great.  I don't fault West entirely for this deficiency because most likely, it had far less competitive intelligence to leverage for development of energy regulation searches than for case research generally.   Still, West's decision to make broad search the presumptive first choice for research in order to make its database more Google-friendly means that West gave short-shrift to another Web 2.0, technology trend:  user-customization.

But before I get specific, let me (like WestlawNext search) start more generally:   The WestlawNext product, and the sheer amount of work that's gone into it wowed me.  Learning about how West developed the product - from analyzing the way customers view a screen to how many times they print out a case - was simply fascinating.  (Greg Lambert discusses it in detail at  3 Geeks and a Law Blog)  I'd always assumed that developing computerized research products consists of nothing more than dumping a bunch of cases into a data base and programming a search tool.  Now, I'm aware of the effort that goes into creating sophisticated search tools.  As such, I'm somewhat more understanding of the comparatively high price tag that top line research tools carry even in an age of declining technological costs.

Likewise, WestlawNext's comprehensiveness and intelligence was also impressive.  Searching for municipality and civil rights liability puts Monell, the seminal casae, at the top of the charts as you might expect.  But WestlawNext also captures cases with synonymous terms, like respondeat superior for liability and town or agency for municipality.   Even further, WestlawNext casts a wide net, bringing up dozens of law review articles, treatise, jury verdicts and briefs.   Who knew that relevant law could reside in so many places?  It's a lawyer's dream.

But unfortunately, I don't practice civil rights law or traditional "law school" law for that matter any kind of "law school" law (i.e., related to matters taught in law school).  My bread and butter lies in energy regulatory matters, which require me, even at the appellate level, to comb through hundred page Federal Energy Regulatory Commission (FERC) orders (often an initial decision and then another equally dull and complex one one rehearing), federal statutes and regulations.  Indeed, it's my day job in the energy biz that keeps an otherwise renegade 21st century lawyer like myself with a penchant for "free" (see, e.g., here) wedded to costly commercial services: they're the only game in town for researching regulatory law.  In the regulatory domain, Google is worthless, as are the second-city search tools (which I adore for their commitment to low cost alternatives) like Fastcase, Casemaker and Versuslaw.

 Yet, WestLawNext doesn't stack up so well for regulatory research.  When I research an energy issue, I need precision.  I need to be able to search a FERC regulatory library and possibly federal appellate and district court cases, either simultaneously or individually.  Sometimes, as for a recent massive report that I completed on feed-in tariffs, I need access to FERC and state regulatory libraries simultaneously. I also need statutes and regulations, sometimes SEC library, sometimes Department of Interior and sometimes even a smattering of international cases (but that's a matter for another day).  That is absolutely all I need 90 percent of the time for energy regulatory research --  and WestLawNext doesn't make it particularly easy for me to put customize that kind of search database (though to be fair, neither does LEXIS, even with a stand-alone "energy" library).

In addition, even if WestLawNext allowed me to cobble together this kind of specialized search (and maybe it does - it just isn't readily apparent), I'm not so sure that I'd want to pay for all the add ons just to get access to a discrete set of particular services.  I want to pay for what I eat, not for all I can eat.  However, WestLawNext didn't go into detail about pricing, so I'll hold off on any further comment on that front until more information emerges.

As many of the other commenters have observed, WestLawNext's design channels Google to some extent and indeed, that's not a bad thing.  There's something to be said about a clean interface, starting search broad, then narrowing and using past results to inform subsequent searches.  But much as I love Google (and I have to because my husband works there!), the ability to process massive amounts of information represents only one modern day technological advancement.  The other advancement is user-customization, which lies at the core of most Web 2.0 technologies.  Once I have access to the entire universe of legal research, I want to be able to cut it up, and pick and choose the pieces that I want and package it to suit my needs.  I can do that with many Web 2.0 tools, but I can't do it so easily with Google and it doesn't appear that I can do it with WestLawNext. 

Anyway, those are my comments - I look forward to your insights when the product launches on February 1.  By the way, here's a huge thank you to West for going to the time and expense of seeking feedback from a wide span of the blogosphere and putting on such an informative presentation.

For other commentary on the WestLawNext, see the following:

Adams Drafting (asking about the role of legal research in contract law).

Out of the Jungle (does WestLawNext dumb down legal research?)

Thoughful Legal Management (summarizing all of WestLawNet's neat features)

Slaw.ca (usefulness of WestlawNext in Canada and pondering corporate counsel's willingness to pay for premium service)

JasonEisman.com/blog (video conversation - note towards the end, Tom Boone's question about whether WestlawNext widens the gap in legal research (presumably between those who can afford premium and those who can't).

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What do I think about Google's recent launch of a free, online legal research tool as part of Google Scholar?  (disclosure: my husband works for Google, but isn't involved with the legal research project)

  Funny you should ask, because I've been tracking, evaluating and most of all, patiently awaiting the arrival of a functional, robust online research tool for nearly a decade.  Back in 2000, I wrote my first piece for the Washington Legal Times, entitled How I Researched A Legal Brief Online for Free (now only available behind fee wall, here) And when I started MyShingle in 2002, I set up a category for "Legal Research & Writing" to track various bar associations' adoption of Casemaker, which at that time was one of few free resources for legal research.  In short, I've been around the block long enough to put Google's new tool in perspective -- a welcome  step worth celebrating, but far from the game changer that many are predicting.  At least yet.  Here are my quick thoughts:

1.  Is Google's free service functional?  Google's service isn't the first time we've seen free legal research on the Internet.  For years, Findlaw purported to be a source of free research and to its credit, it aggregated most publicly issued court releases.  But Findlaw didn't offer a search engine for locating the material nor did the cases include citations.  Moreover, Findlaw didn't include any federal district court law, thus severely limiting its functionality.

Google's legal research tool is different.  The coverage is broad, dating back at least 60 years and encompassing federal district court cases, bankruptcy and state and federal appellate decisions.  Not surprisingly, the search engine is robust, speedy and offers several neat features, such as the ability to search by state and to see how a case has been cited previously.  In addition, the cases include the appropriate Bluebook citation (e.g., 333 US 234 (1943)) and hyperlinks to other cited precedent.  

One deficiency I noticed, however:  I was unable to find unreported cases (or at least my one unreported case; most of mine are published).  For example, a Section 1983 case of mine went up to the Fourth Circuit and was affirmed in an unreported case.  Google lists the lower court decision, but the appellate decision isn't available either through direct search or the cited previously feature.  That's potentially a problem (even though many circuits don't permit cites to unreported cases, they can prove valuable) and I assume it will be corrected or the omission will be clarified.

Update - for more extensive functionality analysis, see Don Cruse's Scotx Blog and Volokh (describing his vanity search).

2.  So will Google replace Lexis?

Already, some bloggers like Social Media Law Student Rex Gradeless are suggesting that Google's unique features will give LEXIS and Westlaw a run for their money.  How I wish that were so, but it's unlikely for some time.  For starters, what many commenters overlook is that a research database for caselaw alone isn't very useful for regulatory practice areas like energy, securities law, communications or tax where LEXIS and Westlaw aggregate reported agency decisions.  That's the value I get from LEXIS and what keeps me a captive customer.

Second, LEXIS and Westlaw are upping the ante with value adds like access to federal briefs (I don't subscribe to these add-ons because I can't justify the cost in my practice).  In fact, several weeks back, I was blindsided in federal court when opposing counsel cited an unpublished federal district court decision issued a few months earlier that was not yet indexed on Westlaw or LEXIS.  My guess is that my opponents' searches lead them to one of the briefs in the unreported case which cited other related caselaw.  Having found the brief, they could then enter the docket number on PACER to determine whether a decision issued (which it had in this case).  This is the first time that this has ever happened to me; generally, I'm a sufficiently thorough researcher that I never miss a case.

My point here is that even as free services launch, the premium legal services still continue to improve. So the gap still remains  between legal research haves and have-nots.  And just when I think that the gap is closing and perhaps the WEXIS duopoly has been cracked, it turns out that the fee services have added some other bell or whistle to keep an edge.

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On the surface, this article about Lawyers.com's upcoming television ad campaign, which is intended to attract more consumers to its site, seems like nothing more than business as usual in a down economy.  But there's far more to it than that.   The Lawyers.com television strategy is both a reminder of lost opportunity by Reed-Elsevier (parent company to Lawyers.com and Lexis-Nexis) to gain footing in the solo and small firm as well as a lesson of how many companies seeking to serve solo and small law firms miss the mark with their offerings.

Ten years ago when Lexis and Westlaw were essentially the only online legal research tools in town, either company could have tapped into, and indeed dominated the solo and small firm market with reasonably priced research offerings.  In fact, Lexis even took a stab at trying to lure solos with its free LexisOne service, which essentially slapped Lexis' boolean search interface onto a Supreme Court, federal appeals and state appellate court data base, with caselaw dating back ten years.  The LexisOne service doesn't offer any cases that aren't already readily available online for free, but the search engine made it easier to locate those cases.  But LexisOne never took its service any farther than that.

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Back in the dark ages when I started my firm, the only legal research options available were the library and a $600/month LEXIS subscription service, which actually had a cap on number of searches.  Fast forward fifteen years and Lexis costs have declined considerably, though not as much as one might expect in light of technological advancements and the rise of free and low cost competitors.  Still, according to the ABA's most recent Technology Survey, more lawyers rely on free rather than fee legal research services.

The change is attributable in large part to the fact that many state bar associations now offer online legal research services free or at low cost as a benefit of membership.   Fastcase and Casemaker dominate the free offerings, though at least one bar - the New York State bar - now offers Loislaw.  As between Fastcase and Casemaker, Bob Ambrogi gives Fastcase the edge in this detailed review at Law Tech News.  Still, Bob notes that both services suffer from one deficiency:  there's not equivalent of Shepards to allow a user to quickly determine whether a case remains good law.  And while there are work-arounds, they can be time consuming. 

If you don't belong to one of the bar associations that makes Fastcase or Casemaker available free (you can see the run down here), you might be able to join one of those bars even if you're not licensed to practice in that jurisdiction.  But a far better deal is to join the Jenkins Law Library which for $150 per year offers the best of both worlds:  access to Fastcase and 20 minutes of LEXIS a day.  That way, if you're researching a brief, you could compile all of your case results and in 20 minutes, zap them through Shepards on the Jenkins' LEXIS account.  Also, if you find cases that are important and you think you may use again, you can use some of these excellent tips from the Delaware Employment Law Blog to retain and organize your research.

Still, if you're a regulatory attorney as I am, the low cost services won't be of much use to you because they don't carry the administrative agency decisions that are critical to a regulatory practice.  And though most agencies now publish decisions online, there's no reliable mechanism for searching them.  At least with Lexis, there's a compromise:  the "specialty" libraries for topics like energy, employment, securities, etc...provide access to regulatory decisions and court cases for fairly reasonable rates - under $150- per month.  And even in this age of free, I consider my Lexis account a bargain compared to the rates being charged when I started out. 

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Over at my Legal Blogwatch beat, I posted about an ongoing lawsuit against biglaw firm Chadbourne Park, alleging that Chadbourne wrongfully billed the client $20,000 for online research services when the actual cost to the firm was only around $5000.   The suit alleges that the firm engaged in deceptive trade practices in violation of state law and committed fraud. 

The case raises a couple of important questions for solos:

1.  Should you mark up the cost of online legal research when you pass the charges on to your clients as a disbursement (i.e., expense item)? 

2.    Should you pass on costs of online legal research to clients as a separate "line item" expense, or treat the costs as overheard, encompassed in your overall billing rate or flat fee?

As to the first question, ethics rules govern the permissibility of mark-ups of out-of-pocket expenses.  ABA Model Rule 1.5 provides that for costs such as telephone or copying charges or other out-of-pocket expenses, lawyers can charge a reasonable amount to which the client agrees in advance or an amount that reflects costs incurred by the lawyer.  So, back in the day when law firms operated copy rooms as profit centers (and maybe the same is true now), they'd typically include a provision in the retainer agreement stating that clients would be charged .25/copy, without noting that copies only cost the firm a few cents.

Still, even where you pass on actual costs to clients, as opposed to mark-up costs, should you do so?  Generally speaking, clients who receive a bill for $1000 for legal services often feel that they've been nickel-and-dimed when a lawyer tacks on fifty cents for the cost of postage or $2.50 for the cost of a file folder.  Of course, where you incur an extraordinary expense like an airline ticket or several hundred dollars worth of copying, seeking reimbursement is fair and a client won't likely begrudge you for it.  But collecting smaller expenses just makes you look cheap.

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At Illinois Trial Lawyer , Evan Schaeffer shares a wonderfully valuable resource, The Center for Criminal Justice Advocacy.  The Center was formed as a free, non-partisan training resource to assist new lawyers in becoming competent criminal practitioners.  And one of the Center's missions is to provide newly licensed sole practitioners with materials to provide a structured analytical approach to planning and conducting a criminal trial.   The site is chocked full of resources, including sample opening statements, witness interview forms and even law office management tips for solos setting up a criminal practice.

The CCJA site will help far more solos than those who specialize in criminal work - and in fact, arguably provides a more significant service for those who don't necessarily seek to focus on criminal work.  In my view, whether you want to practice criminal law or not, handling criminal cases on a court appointed basis offers an excellent way for solos to build skills and make some money at the same time.  When I started my firm, I was adamant about getting into court so I signed up for DC's court appointed panel.  Within two years, I'd argued several suppression motions and had a couple of bench trials, two jury trials and sentencing hearings.  I earned some money (enough to pay rent, at least) and acquired the experience that I'd craved.  But I was fortunate:  the DC Public Defender's office offered a two day training program that taught new court appointed lawyers exactly what we needed to do from arraignment through appeals.  That course, combined with a $60 handbook on DC Criminal Practice and a couple of days of court-watching gave me enough of a foundation to actually procure pretty good results, considering my lack of experience.

The CCJA site provides much of the background that I received in my DC training course (though of course, the information is more general rather than jurisdiction specific).  Nevertheless, with a resource like this, new solos who want to sample criminal work either to make some money or get courtroom experience can do so more readily, while still serving clients with the level of competence they deserve.

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Like Barry Kaufman, I'm a huge fan of the law library and recognize that it's an indispensable tool for solo practitioners.  Which is why I'm thrilled to be able to offer this Guest Post, Eight Reasons Solo Lawyers Should Use Law Libraries  from Mary Whisner, the assistant librarian for reference services at the Gallagher Law Library of the University of Washington School of Law.  Mary also runs Trial Ad Notes, a blog about trial advocacy. 

Eight Reasons Solo Lawyers Should Use Law Libraries

One. Librarians.

    * Libraries employ people whose job is to help you use the library and figure out your research puzzles. Law librarians specialize in legal materials and the needs of legal researchers. Many are legally trained. We keep up with new sources and techniques and can often save you hours in your research. What's more important to you than your time?

    * Librarians also create online guides to help you with your research. See my library's collection of guides, for instance. So we can help you with your research without ever meeting you - even at 2:00 a.m., if that's when you're looking for some research pointers.

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David Swanner posts this excerpt from a rehearing petition that's likely to lose.  Read it and see if you can figure out why:

Statement of Issue Presented for Review: The Court of Appeals committed a major error in affirming the dismissal. The Court did not address the facts of the case. The Court has a warped perspective of the Rule of Law.

Conclusion: The Court Administration should have the case reviewed by competent individuals.

I had to read the post carefully to make sure it wasn't some kind of premature April Fool's joke, but it appears that the petition was actually filed.

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Casemaker, a free legal research service included in participating state bar membership fees is a trend we've been following for a long time.  As this article fom bizjournals.com (1/20/06) reports, New Mexico is the 23d state to join the Casemaker consortium.
New Mexico Bar joins legal research consortium, hich according to the article, now serves 424,000 American lawyers. 

I'm a member of the New York, Maryland and District of Columbia bars, none of which participate in Casemaker.  So I'm publicly asking why not?  And you should do the same if your bars haven't joined either.

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This article, Curb Your Editorial Urges When Describing a Court's Actions, Kenneth Oettle (NJLJ) (10/5/050)  finally clarified for me the subtle differences in verbs like recognized, observed, ruled, held and others that describe how a court acted.  As a general rule of thumb, here's how the author feels about some of these verbs:

    Affirmed -- double meaning

    * Asserted -- too forceful; Court has no need to assert

    * Averred -- word is rarely used

    * Declared -- grandiose

    * Explained -- didn't, really

    * Opined -- true, but probably too formal

    * Remarked -- too casual 

So, just another thing to obsess over in writing a brief.

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Via Tom Mighell at Inter-alia comes a link to weblog that's been published since March 2005 but is new to me: Wayne Schiess' Legal Writing.  Wayne's site offers examples of poor legal drafting, tips on legal writing and a list of articles that he's written. 

What was most interesting to me though was that Wayne's photo looked awfully familiar - so when I took a look at his background, I learned that he was in the class behind me at Cornell Law School.

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This article, Law Library Offers Virtual Services (Cincinnati Business Journal 8/29/05) reports on some of the new, free computerized research services offered by the Cincinnati Law Library Association.  The services include computerized legal research by Fastcase.com and a journal service, HeinOnline.  (as an aside, I've used Hein Online at the American University Pence Law Library and it's a fabulous tool for locating law review articles, including many that have been de-listed by LEXIS). 

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With so many legal research tools available on line, most lawyers neglect the lowly law school library as a resource.  But in my view, there's nothing as valuable for research as a good law library.  In the jurisdiction where I practice, American University Washington College of Law Pence Law Library tops my list as an outstanding resource for practicing attorneys.   Here's why:

1)  Open Admission The Pence Library is open to the public without charge and at all times, except during law school exam periods.

2)  Resources  Obviously, the Pence Library, like all others, has many legal resources including treatises, journals and how to guides.  Most practitioners overlook these general sources of information which are frequently good shortcuts when researching a new area of law. 

Truth be told, the law library is not particularly strong on energy regulatory resources which is one of my practice focuses.  But it has research terminals where patrons can access Westlaw keycite and Hein Online (for law reviews) at no cost and those resources often make it worth the trip.

3) Location and Hours:  The Pence Library is a short fifteen minute hop from my home office and probably about the same distance from downtown.  But the library is open until midnight most weeknights as well as on the weekend, which means that I can access it afterhours.

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Add Florida to the list of jurisdictions with free legal research services, as reported in this  article.  Florida is using Fast Case for its service which provides access to US Supreme Court Cases, Florida Supreme Court cases and Florida statutes and regulations.  I've always thought that free legal research is one of the most valuable tools that the bar can provide to improve the quality of legal service.   Isn't it time that all bars made some online legal research available for for free?

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Ernie the Attorney reports that the Louisiana Bar is offering Fastcase, a legal research service, free to its members.  Louisiana thus joins the twenty other bar associations that offer Casemaker, another free research service.  What I noticed about Fastcase is that it includes access to district court decisions dating back to the 1950's.  This impressed me because district court cases are hard to locate online and thus, for fee services can usually charge a premium when they include them in their data bases.

Ironically, at the same time of Ernie's post, I also noticed that Lexisone is celebrating its fifth anniversary - though there's no mention that the primary reason for Lexisone's birth was that Lexis finally realized that the Internet might enable competitors to provide the same type of legal research service available for free.  Now, it looks like Lexisone might be right after all.

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AJ Levy of http://www.outoftheboxlawyering.com lists a bunch of libraries in several states (AK, MN, NV, NJ, NY, OH, TX and WA) where you can access Westlaw for free.  I was happy to learn about this resource though clearly, it's cheaper for me to sign up for Westlaw on a per-search basis than to travel to New York to get it for free.  But even more, my same burning question remains:  why aren't LEXIS and Westlaw free in every single law library in the country?  It's not as if paying customers (like large law firms) will give up their LEXIS service because it's free at a law school library.  Most lawyers enjoy the convenience of LEXIS on their desktop too much to travel to get it free.  The only people who'd benefit from free LEXIS and Westlaw are attorneys who don't have the service to begin with - and the reason they don't is because they can't afford it. 

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