Thursday, October 13, 2005

In Praise of Stubbornness

It is a very good thing to be stubborn. We should not too easily buy into the glib assurances of modernity that everything, everywhere is getting better and better. Vendors are really listening to law librarians and truly improving Westlaw, Lexis and other online services to our specifications. So I don't want to grump about them -- they are honestly working on making things better and trying hard to work with us to meet our complaints and expectations with real improvements, and to go beyond, surprising us with things we never even thought of. But I am getting more and more stubborn about this moving into an electronic library of the future thing. Mulish, even.

When people want to push stubborn mules along into the future, they often take to beating them up. I haven't found anybody beating me up (yet, not that I've heard anyway). But it is not out of the realm of possibility that the thought police are on my trail.

For many years, I really believed that online searching would be our future and that electronic would banish print eventually and that would be better in the long run. No more dusty books, no running to the library, no space issues, no shelving problems or looseleafing disasters! Wow, we could store whole libraries on little magnetic sticks or some other electronically readable medium. Cool. This is really a huge advantage for the visually impaired, to have so much material in full text, electronically readable, and very convenient for all of us.

But the longer I watched how this all played out, the more skeptical I have become. Watching my law students, listening to lawyers and judges and firm librarians, made me really question how well the students were really doing with their electronic searches. And then Barbara Bintliff's article, From Creativity to Computerese: Thinking like a Lawyer in the Computer Age, 88 Law Libr.J. 338, really crystallized my thinking. She points out that most searches online involve creating a query based on the facts of the matter. Most searches of a digest require the researcher to do some preliminary legal analysis and at least guess at a cause of action to go to the Index for the Digest. Our students (and computer-trained lawyers?)too often are finding the precedent based on facts and then relying on the legal analysis in that case to do the legal analysis in the case at hand.

I am not the only Jeremiah crying in the electronic wilderness: See Scott P. Stolley, The Corruption of Legal Research, 46 For the Defense 39 (2004) and Mark Hermann, This is What I'm Thinking: A Dialogue Between Partner and Associate...From the Partner, 25 Litigation 8 (1998). These are both written by practitioners. Stolley shares two examples of a new associate failing to complete a research assignment because she could not find the materials he requested online. In each case, he went to the books and found the cases himself in less than a half hour. The associate thought he was a wizard. Stolley now requires new associates to go to print resources first and finish with the computer. Hermann tells asociates to begin with print, but that their research is not finished until they check the computer. These long-time practitioners agree that using print resources help a lawyer develop a "feel" for the "shape" of the law. This is a very amorphous argument, but one I agree with. I have practiced law, and the best practitioners still "read the law." They browse the advance sheets when they come out, and keep up with developments in the field they practice in. I have known lawyers in the present day who maintain their own file card system to keep notes of cases in their field, a sort of personalized digest system of their own devising. When you do this for a while, you do have a feel for what the shape of the law is likely to be, doggone it, and where to look for it, too.

This little stubborn mule is courtesy of

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