Friday, October 30, 2009

Why Lexis and Westlaw Should NOT be Like Google

For the first time, I had a student write in my Advanced Legal Research class that they wished that Lexis and Westlaw could be more like Google. I had heard other librarians moan about this but had just not run across it til now. It really gave me pause to have it in hand. And it made me think, it challenged me. Why should this student not get her wish? If I sat down with this young woman and had a conversation, what would I say about why I disagreed? There must be more than just a knee-jerk revulsion against the transformation. What would be my reasoned argument to her?

I. Google flattens the world of information

When Google retrieves things from the Web, it does not distinguish what kind of information it is bringing back or what kind of source it is retrieving it from. For lawyers, this is disastrous. As a lawyer, you must care a great deal whether you are retrieving a statute or a piece of an article or a blog entry, or a case or a headnote. Some of these items are actually primary law (statutes and cases), which carry legal authority, and can be relied on in court. Others are secondary authority and will help you locate and interpret the primary authority (pretty much everything except the blog entry probably, and possibly even that). And some of it is merely commentary, and not reliable enough, probably to do secondary resource job. I am beginning to see occasional students who do not distinguish between these various resources, and now begin to see why. If they simply rely on Google to bring it, and learn not to care what "it" is, what a very dangerous habit for lawyers!

Students already seem to have trouble distinguishing between statutes and regulations on a pretty common basis. They need to have this explained, sometimes, even after taking an Administrative Law class. Perhaps they are merely being sloppy with terminology, but that is rather dangerous in itself. For that carelessness to extend to the whole world of information, bodes very badly indeed! This is not just a fussy librarian speaking. They will lose jobs; they will lose in court; they will lose clients; they will be disgraced.

II. While the goal of Google is to save you work, intellectual work is what lawyering is about, and what distinguishes the lawyer from the paralegal.

Already, searching on Lexis and Westlaw has done some interesting and perhaps deleterious things to legal analysis. I suspect that young lawyers and law students may be often relying on the cases found to do the legal analysis for them, rather than doing their own original thinking, or pre-analyzing the case. There seems to be growing weakness in analysis, and if it is not taught affirmatively in law school or some other part of training a lawyer for practice, many lawyers simply will not know how to do careful and creative analysis.

For instance, my students had not generalized the skills of reasoning by analogy or making policy arguments in cases where they could not find precedent in their jurisdiction. I am sure they had read cases in textbooks for other classes that did both, but they had never thought about doing that themselves! We had to talk through about how they what would they do, if they could not find cases on point in their jurisdiction. They certainly came up with persuasive authority -- bringing in cases from other jurisdictions. But nothing else at all came to mind.

If you are not prepared to do careful, precise thinking, the life of the law is not for you. If your ideal is to have Google or some other AI genie do your thinking, you are not cut out for lawyering. Not now, and not ever. Even if there ever is a true AI, a profession means that the human is taking a higher level of responsibility, and a higher level of expertise. For lawyers, the expertise is THINKING, ANALYSIS. We don't KNOW the law so much as know how to THINK ABOUT the law.

5 comments:

Betsy McKenzie said...

My son and I had a conversation about this last night. He pointed out that SOME Google users use careful and sophisticated searches that do NOT flatten the world of information. They add terms and use filters that specify, for instance, that they want results that will focus on cases or results from sources that will produce either cases or statutes, perhaps, or journal articles instead. This is true. But the users who are longing for Westlaw and Lexis to function like Google are NOT those searchers. The reason they wish everything worked like Google is that they like searches where they put in a word or two and -voila!- you get results. They like having the machine do the mental work, such as gets done. And herein lies the problem if you are planning to become a professional of any sort. My son is a computer scientist. He LOVES doing computer searching and is very good at it. But if he were confronted with a student who SAID he wanted to major in computer science but really preferred doing Google searches with one or two word searches and expected Google to sort the world for him or her, I think my son would see a problem with that student's career choice. The problem is not Google, the problem is with relying on Google to do the thinking for you! I should rephrase my original statement: Google, when used as a blunt search instrument, flattens the world of information. I guess the same is true of Lexis and Westlaw. But it remains less true when one must first choose a database.

Betsy McKenzie said...

My son and I had a conversation about this last night. He pointed out that SOME Google users use careful and sophisticated searches that do NOT flatten the world of information. They add terms and use filters that specify, for instance, that they want results that will focus on cases or results from sources that will produce either cases or statutes, perhaps, or journal articles instead. This is true. But the users who are longing for Westlaw and Lexis to function like Google are NOT those searchers. The reason they wish everything worked like Google is that they like searches where they put in a word or two and -voila!- you get results. They like having the machine do the mental work, such as gets done. And herein lies the problem if you are planning to become a professional of any sort. My son is a computer scientist. He LOVES doing computer searching and is very good at it. But if he were confronted with a student who SAID he wanted to major in computer science but really preferred doing Google searches with one or two word searches and expected Google to sort the world for him or her, I think my son would see a problem with that student's career choice. The problem is not Google, the problem is with relying on Google to do the thinking for you! I should rephrase my original statement: Google, when used as a blunt search instrument, flattens the world of information. I guess the same is true of Lexis and Westlaw. But it remains less true when one must first choose a database.

Damien said...

I think the desire for Lexis and Westlaw to be more like Google is simply a shorthand way of saying that Lexis and Westlaw are not user-friendly, something I would agree with entirely. Neither are "easy" to use. Design seems to be an after-thought for both organisations. Sometimes I wonder whether anyone who creates these sites has ever used the internet before. I've worked with both platforms for years and still get frustrated with them on a daily basis. They *should* be more like Google or iTunes or Facebook or other well-designed services. In fact I recently expressed this desire in a conference paper I recently gave to the Australian Law Librarian's Association conference: Digital technology and the new consumer: what Radiohead, The Huffington Post and Perez Hilton can teach legal information professionals.

Sigh. If only Steve Jobs was interested in the law ...

I would agree though that Google does flatten the world of information to a certain extent but it does feature PageRank technology to give more weight to those that are considered by others to be more useful. Perhaps if courts and legislatures let their databases be indexed by Google then they might end up carrying more weight simply because of the extensive cross-referencing within those sources. It would be interesting to see how a Google-fied case law and legislation database would look like.

Regardless, I think the problems you describe highlight real problems that our legal educators need to addess. Google definitely encourages lazy researching but if a student is citing Wired.com instead of the relevant legislation then they don't know much about the law. And a lot of these students existed pre-Google. Ditto students who can't reason or argue without precedent.

Mark said...

Disclaimer: I am not a lawyer. I have a PhD in Computer Science and an interest in the law.

As a student I was taught that it was important to identify primary sources. You should aim to read and document all relevant material so that readers may make a considered judgement.

The same applies in a legal context. If you see an article in isolation it simply represent the opinion of the author. If you also see a statute under discussion, and case law, and they all support the opinion of the author you can have more confidence in the article.

I suggest that there are two problems:
1) Users prefer the user interface of Google to that of Westlaw and Lexis (who can blame them?).
2) Users should be trained how to evaluate material they discover during their research.

Google doesn't aim to solve the latter.

Betsy McKenzie said...

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