Oh, yeah! I forgot to tell you...

I went back today to see the earliest post I ever made to OOTJ. It appears to have been Friday, August 5, 2005. I blogged about the buzz generated by a couple articles in AALL Spectrum, by Jim Milles and Joan Shear. I had heard at the annual meeting of AALL that Joan and Jim's articles had been noted by a blog in France. The articles were discussing print versus digital, and Jim's article gave its name to this blog, Out of the Jungle.

In that post, I mentioned some research I was engaged in with Susan Vaughn and a couple law students (one of whom is now working in our library and studying for his library degree: welcome and thanks to Scott Akehurst-Moore). I don't think I ever came back and told folks any more about that project, which has yet to be published in print. You can see an in-depth draft article at Suffolk on NELLCO Legal Scholarship Archive.

In brief, we read through briefs and decisions of all cases of first impression from 2 decades in the Massachusetts Supreme Judicial Court. We looked in the 1950's - 60's, and again from 1993 - 2004, the most recent date to get briefs. We wanted to see if lawyers were doing legal analysis differently after computers came to be ubiquitous in law practice. We looked at whether the writers of briefs and decisions used "reasoning by analogy" when they were faced with cases with no precedent. When lawyers and judges have a case with no precedent (no earlier cases dealing with the same issue), they usually have to either use a policy argument, or find an analogous situation and urge the application of the same solution.

For instance, if you cannot find any earlier cases of a person throwing a firecracker on a crowded bus. It's not a straightforward issue. The people injured weren't hurt so much by the firecracker but by the reaction of the frightened passengers who trampled them. You might resort to asking the court to think about policy. Or you could look to see if you find earlier decisions involving similar situations that raise similar issues. Maybe you find a case where somebody yelled "fire" in a crowded theater and people panicked and trampled others. You use this case, and draw analogies to the firecracker on the bus, arguing that the judge should adopt the reasoning of the court in the theater case.

So, did the way lawyers reasoned when faced with cases of first impression change after computers came into law offices? Yes. The numbers are not stark, but I think they DO show a difference:

1995 - 2004, 31 cases of 65 = 47.69% using analogy
1956 - 1965, 9 cases of 16 = 56.25% using analogy

Please read the paper to get the full picture. I hope a revised version will be accepted for publication in Law Library Journal, but haven't heard yet.