Thursday, October 06, 2005

Survivor: Law Library

This week on Survivor: Law Library, our two teams "Paperbound" and "Electronica" battle it out for space in the Law Library budget. Who will win, and who will be sent packing?

Just like everyone else, Canadian law libraries are struggling with the balance of formats. Do we keep both paper and electronic? Do we favour one over the other or, moreover, get rid of one altogether?

The biggest struggle right now is, not surprisingly, with case law reporters. From a librarian's viewpoint, case law is the perfect type of text to store in electronic format: they are voluminous, published in a somewhat random order, and need to be accessed frequently and quickly for research and books of authority for court. "Electronica" will surely win this challenge hands-down!

However, while some law firms, especially small firms or firms with a corporate focus, have been able to give up paper case law, others are still very much wed to paper. Many litigation lawyers still distrust printouts from online subscription services such as Quicklaw, Lexis or WestlaweCarswell (Thomson's version of Westlaw in Canada). They indicate a preference for the edited text in published reporters, a need to cite to specific page numbers, and especially a fear of what judges will think when presented with something from an electronic source. I've even heard it to be considered "lazy" if electronic case law is presented with research (although no one has used that term to my face).

There has been an immunity challenge. All publishers, whether producing electronic or paper case law, now use paragraph numbering so that citation in one source is equivalent to that in another source. See the Canadian Guide to the Uniform Preparation of Judgment from the Canadian Citation Committee, adopted in September 2002. As well, courts took the important step of adopting a "neutral" citation policy, giving the same citation to cases no matter the format. See A Neutral Citation Standard for Case Law adopted in 1999. Still, these efforts have not seemed to get anyone closer to winning the challenge. Where's Jeff Probst when you need him to call a winner?

The problem has been that a neutral citation does not tell one where something is located, and as a result few people are using it. Private practitioners are outright puzzled when they come across a neutral citation. Except for research lawyers and librarians "in the know", few people recognize a neutral citation when it hits them over the head. So, chalk another one up for the "Paperbound" team.

How do we find our way out of the jungle, other than just kicking everyone out of the game? Personally, I see one of two scenarios effecting a change: a matter going before the courts and the parties involved being reprimanded for using copies from paper sources where electronic would do; or publishers ceasing publication of case law in paper.

Considering the economics involved, I think we are more likely to see the latter. Canada is a small demographic for legal publishing, and who knows how long they will be able to sustain publication in duplicate formats. Prices rise tremendously each year and at some point they won't have enough customers to sustain the paper format.

In the meantime, we wait to see which publication will have its torch extinguished next. Stay tuned...

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