When I first started teaching legal research I divided the topic into “paper research” and “computer research.” I covered the digest, the court reporters, statutes and regulations, all in paper form at the library. Then I went on line and showed the students how to use Westlaw and Lexis. A year later, I would see the students in the library and they would all be on their laptops, taking advantage of the free access they had to Westlaw and Lexis. Meanwhile, the books sat on the shelves, untouched. And some of the students I asked still didn’t known what a digest was. Either they forgot or they weren’t listening when I introduced it the year before. Because of those experiences, I try very hard now not to fall into the paper research vrs. computer research trap. If you have grey hair, like I do, trying to convince young students of the virtues of paper research is futile. No matter what I say, they see me as an old man who is stuck in the past, doing things the old way. So I have given up on extoling the virtues of paper and books. Just about everything that is in print can also be accessed using the computer. The real difference is in the mechanisms available to search for information. You can do a word or phrase search, you can do a search using a table of contents, or you can look up a topic in an index. When you do a word search, it is a computer that is compiling the search results for you. When you use a table of contents or an index (which you do on paper or on a computer), the search results are compiled by a human being.

Every statute and regulation has a table of contents. And a case digest is really a giant annotated table of contents too. Most lawyers are familiar with the print version; the on line version is referred to as West’s Key Number system. Both versions tell you what topics are covered in the case reporters, and the topics are organized by subject matter. What’s great about that is you see the topic in context. If you look up a slip and fall case, you will see that is part of the subject of premises liability, which is under tort law. Also, for each topic, there are headnotes of cases that have been read and quoted or paraphrased by a human being. The filing and sorting is not done by computer; it is done by a real person.

Every digest has an index, and statutes and regulations have indexes too. An index also tells you what topics are included in a series of books or databases, but it is organized alphabetically instead of by topic. And there are usually cross-references to related or similar subjects. Again, the topics are filed and sorted by people not computers. A person can discern the meaning of language, not just identify a literal match. So you are less likely to retrieve irrelevant and useless information using table of contents or an index instead of doing a word search.

Every document in a computer can also be searched using a word or phrase search engine. Students may be more comfortable with this type of searching because it is the way internet search engines work. For most of the searching you do on line, search engines like Google and Yahoo work great. If you are doing legal research, and you are looking for a “needle in a haystack,” there is nothing better than to do a word or phrase search on Westlaw or Lexis. But if you are searching in an unfamiliar area of law or you don’t know the terminology for the topic you are interested in, then a word search may not help you. Search engines have gotten better but they are still too literal. A computer can’t read a case, think about it, and tell you whether it deals with the topic you are interested in. It may give you what you want, but it will likely give you a lot of irrelevant information too.

For example, I once had an auto theft case that involved a juvenile. What was odd about the case was that, after the juvenile stole the car and drove around in it, he returned it to the place where he found it. Initially, I thought the fact that he returned the car would be relevant to intent, and I started looking for intent cases on Westlaw but I found nothing. Then I used the digest and found cases organized under a topic labelled “joyriding.” It turns out that is the term for this type of crime. Once I knew the terminology, it was easy to find something on point. But it was the digest that saved me, not a word search.

Another time I was researching the issue of whether the presence of second hand smoke could support a claim for breach of the implied warranty of habitability. I looked in the digest first and found lots of warranty of habitability cases, but no topic specifically involved second hand smoke. Then I did a word search on Westlaw using “smoke” or “smoking” and “warranty of habitability” as a search terms, and all the state reporters for the entire country as a database and bingo! I found what I was looking for.

Whether you do the work using a computer or pages in a book is not what matters. The real distinction is among the types of mechanisms that are available to assist you in finding what you want. There is computer assisted searching and human assisted searching. And it would be a senseless waste of human effort not to utilize human assisted searching simply because it was historically done on paper. Legal research is not divided into computer research and paper research, it is divided into research doing a word or phrase search, and research using a table to contents or index. The first type is appropriately called “computer” research; but the other two aren’t really “paper,” they are “human”!

Ben Fernandez

Ben Fernandez teaches Legal Drafting (litigation documents, contracts and legislative documents) at the University of Florida Levin College of Law. He previously taught Legal Methods (Legal Analysis), Legal Research and Objective Writing, Lawyering Process for Litigation Practice, and Transactional Drafting at Florida Coastal School of law. Also, he worked as an adjunct professor teaching Legal Writing at Northeastern University School of Law in Boston, and Business Law at Cape Cod Community College. Ben has twenty-five years experience representing financial institutions, government housing finance agencies, non-profit corporations, home buyers and sellers, and other clients in commercial and residential mortgage loan closings, affordable housing finance transactions, and residential real estate developments on the South Shore and Cape Cod. He had his own practice in Plymouth, Massachusetts for ten years. Before that, he practiced law in the city of Boston for fifteen years. He worked as in-house counsel for a state-sponsored affordable housing finance agency, managed the business department of a prominent minority-owned firm, and was an associate at two large Boston law firms. Ben also served on the Board of Directors for Habitat for Humanity of Greater Plymouth, Massachusetts. He was a volunteer teacher in Junior Achievement's Financial Literacy program, and a regular speaker at Homebuyer Education Workshops sponsored by South Shore Housing and Housing Assistance Corporation on Cape Cod. Ben has an LL.M. in Banking and Financial Law Studies from Boston University School of Law, as well as a J.D. from Northeastern University School of Law and a B.A. from Cornell University.

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