An indictment is unsealed in the United States District Court for the Southern District of New York, charging your client with a violation of 18 U.S.C. § 1344. The Feds say your guy, a real estate developer, submitted a false loan application in support of a business loan. If convicted of this Class B Felony, he faces up to 30 years in prison.
•YOUR ARSENAL
You subscribe to Westlaw. Why? Because you are impressed by Thomson-Reuters' claim that "West attorney-editors categorize, organize, and summarize the law to help you find what you need quickly and ensure that you don’t miss anything." (emphasis added)
You are enticed by Westlaw's homepage trumpeting: "Better results faster." Who doesn't want that?
You purchase the United States Code Annotated because you are impressed by West's claim that "annotations provide a complete picture of the law as interpreted, construed, and applied by the federal courts." (emphasis added)
You subscribe to the West Key Number System ("KNS") because you are impressed by West's claim that key numbers allow you to "quickly find other cases that address your exact point of law in any jurisdiction." You are persuaded by West's argument that "[m]uch legal research is a hunt for principles or concepts not easily retrieved with word searches." (emphasis added)
And that, "West topic and key numbers enable you to find cases stating or applying a legal concept, even if those terms aren't in the opinion." How cool is that?!
You frequently accept West's express invitation to narrow your results by adding key numbers to your word searches, so you can "narrow your search results and still get the cases you want." (emphasis added)
Your client doesn't want to go to prison. Together you choose the lifestyle choice to take the Federal government to trial. He mortgages the house to pay your fee.
You know Westlaw charges far more than any other online infomediary. But they are the best and so are you. So, you sign the contract, agreeing to pay approximately $10,000 for the annual national plan of American primary law.
Your opponent is the largest law firm in the world - the United States Department of Justice. But, with West's toolset of foolresistant pathfinders - annotations, key numbers and headnotes - you are armed to the teeth. You feel secure. After all, you've got the collective thinking of West's expert attorney-editors in your hip pocket.
You go through these gyrations because your worst nightmare is missing important law.
•KEY NUMBERS TO THE RESCUE!
You sign on to KeySearch®, searching keys to the Second Circuit on the phrase "false loan application". BOOM! You are instantly linked to your key number - 52K209.20 - False Statements To Banks. Good times!
>>The KNS generates a 1,263 word document containing 17 headnotes.
>>The 17 headnotes are inspired by the following seven opinions: United States v. Autorino, 381 F.3d 48 (2nd Cir. 2004), United States v. Chacko, 169 F.3d 140 (2nd Cir. 1999), United States v. Cleary, 565 F.2d 43 (2nd Cir. 1977), United States v. Hinton, 703 F.2d 672 (2nd Cir. 1983), United States v. Koh, 199 F.3d 632 (2nd Cir. 1999), United States v. Sabatino, 485 F.2d 540 (2nd Cir. 1973 and United States v. Sackett, 598 F.2d 739 (2nd Cir. 1979).
>>Of these seven opinions, five construe 18 U.S.C. § 1014, which specifically punishes false statements in the context of loan and credit applications: Autorino, Chacko, Cleary, Sabatino and Sackett. The Feds could have charged your guy under this statute. They chose not to. This is a § 1344 prosecution. For the purposes of this search, you don't care about § 1014 prosecutions.
>>Hinton has you chasing your tail. It construes 18 U.S.C. § 2113: Bank Robbery and Incidental Crimes. "What's that doing there?" you wonder.
>>Koh is the lone opinion West attorney-editors identify as construing § 1344. Not only that, it's a false loan application case! The relevant headnote in Koh links you to a 20,243 word document containing 296 headnotes. You print the document. It's 60 pages. Of headnotes.
•REALITY CHECK
You've never much been one for the computer. You don't have a set of best practices in place for conducting legal research. You browse headnotes, key numbers and annotations. Book research on a screen.
You occasionally do some keyword searching but you don't trust the results. In fact you hate legal research so much, the last thing you want to do is read a judicial opinion. Nothing like saving time with those battle-tested West pathfinders.
Isn't that what they taught you in Wolf v. Pig?
Would you be surprised to learn that the database of citable (aka "published") opinions of the United States Court of Appeals for the Second Circuit contains, not one, but five (and only five) opinions that include at least one reference to § 1344, together with at least one reference to the term "false loan application"?
Using TheLaw.net Equalizer 7.0 and the following query: 18 /5 1344 and "false loan application" I learn that the following five opinions match my search criteria: criteria: United States v. Confredo, 528 F.3d 143 (2nd. Cir. 2008), Koh, supra, (2nd Cir. 1999), United States v. Seda, 978 F.2d 779 (2nd Cir. 1992), United States v. Vebeliunas, 76 F.3d 1283 (2nd Cir. 1996) and United States v. Zyskind, 118 F.3d 113 (2nd Cir. 1997).
Using Westlaw and the identical query in a search of the Second Circuit database of reported opinions serves up the same five opinions. Not "better results faster." The same results in one click of the search button. Doesn't get any "faster" than that!
•UH-OH! MISSING OPINIONS.
Four of the five opinions - Confredo, Seda, Vebeliunas and Zyskind - do not appear among the original seven opinions referenced in my original key number results. Koh is the only Second Circuit opinion identified by West attorney-editors for my exact point of law.
But, in fairness, Koh does lead me to the above-noted 60 pages of headnotes. It may take awhile, but certainly if I take the time to review these voluminous headnotes, I will find the four missing cases.
Nope.
Unfortunately, Westlaw attorney-editors make no reference to the missing four opinions in this lengthy document. Nor do they identify any additional opinions from the Second Circuit that refer to § 1344 and the term "false loan application".
Check the West versions of Confredo, Seda, Vebeliunas and Zyskind for yourself. They make no reference to the key number [52K209.20] that lead us to Koh.
Apparently the "Westlaw Advantage" is not an advantage after all. Apparently, West attorney-editors are unable to "ensure that you don't miss anything."
In fact, reliance on the KNS causes us to miss four citable opinions in our primary jurisdiction. Opinions that West attorney-editors either missed, disregarded or misfiled.
•BOOLEAN LOGIC TRUMPS BROWSING PATHFINDERS
West would like you to believe that its manmade index of judicial opinions is somehow superior to advanced Boolean logic, due to the conclusory statement that "[m]uch legal research is a hunt for principles or concepts not easily retrieved with word searches." (emphasis added)
Westlaw's slogan ought to be, "The less you know about your computer, the more you'll like Westlaw."
Using my company's flagship application, TheLaw.net Equalizer 7.0, I go national in one mouseclick! POW! I find the 18 citable Federal opinions containing at least one reference to § 1344, together with at least one reference to the term "false loan application": United States v. Barrow, 118 F.3d 482 (6th Cir. 1996), United States v. Bolden, 889 F.2d 1336 (4th Cir. 1989), United States v. Brekke, 152 F.3d 1042 (8th Cir. 1998), Confredo, supra, United States v. De La Mata, 266 F.3d 1275 (11th Cir. 2001), United States v. Defterios, 343 F.3d 1020 (9th Cir. 2003), United States v. Giannetta, 717 F.Supp. 926 (D. Me. 1989), United States v. Goldberg, 913 F.Supp. 629 (D. Mass. 1996), Koh, supra, United States v. Panadero, 7 F.3d 691 (7th Cir. 1993), United States v. Real Property at 6625 Zumirez Drive, 845 F.Supp. 725 (C.D.CA. 1994), United States v. Rogers, 898 F.Supp. 219 (S.D.N.Y. 1995), United States v. Rothberg, 954 F.2d 217 (4th Cir. 1992), Seda, supra, United States v. Thomas, 451 F.3d 543 (8th Cir. 2006), Vebeliunas, supra, United States v. Willis, 997 F.2d 407 (8th Cir. 1993) and Zyskind, supra.
•DEEP, INDIVIDUALIZED SEARCHING
Furthermore, when I refine my search to include the term "real estate" I find a subset of four opinions from among my original list of 19 opinions that also include a reference to my refining search criteria.
18 /5 1344 and "false loan application" and "real estate" serves up Brekke, De La Mata, Vebeliunas and Willis.
Guided by the text of opinions we've been reviewing, we find second way to say the same thing and refine our search accordingly. Using either TheLaw.net Equalizer 7.0 or Westlaw enter:
18 /5 1344 and ("false loan application!" or "fraudulent loan application!")
Metasearch published Federal appellate opinions - BOOM! - in one mouseclick we find the 59 opinions nationally that include at least one reference to our statute and at least one reference to one of our two phrases. (Note: Parenthesis are used in Boolean logic for purposes of grouping alternative search terms. You should never use them otherwise. The exclamation mark (!) captures "application" and "applications".)
We fold "real estate" back into the mix:
18 /5 1344 and ("false loan application!" or "fraudulent loan application!") and "real estate"
BOOM! 22 published Federal appellate and 4 published Federal district court opinions match our criteria!
•KEY NUMBERS: YOU CAN'T GET THERE FROM HERE
The best that can be said about the KNS is that the results are unwieldy and incomplete when compared with what can be achieved using advanced Boolean logic. The KNS can result in you missing important law. It will almost certainly slow you down. It frequently guides you off course. It will even lead to time wasted as a result of information overload.
The KNS identifies opinions in jurisdictions you can't get to unless you have an expansive plan. The KNS attempts to lure you outside The Plan. Which, of course, is the real plan.
I am less interested in the atypical instance where a West attorney-editor indexes an opinion based on a concept that does not appear in the text of opinions, than I am about the overlooked, disregarded or misfiled opinions which expressly do include our concept in the text.
•RELEVANT QUESTIONS
If your real estate developer client is charged with submitting a false loan application to the bank in alleged violation of § 1344, don't you want to read all 18 opinions?
Don't you want to be able to find, in one mouseclick, the four opinions nationally that also mention the term "real estate"?
It's never going to happen browsing the time-consuming collection of West pathfinders. And it's certainly not going to happen by adding a key number to your search query! Better to hope your opponent takes this advice.
And what of the fact that I can find everything I want (and nothing I don't want) faster and better than you can? It creates a competitive situation, huh?
•BOOLEAN SEARCH OVER BROWSING
Before computers, the idea of relying on headnotes, annotations and key numbers generated by individuals who know nothing about the totality of circumstances surrounding your client, was a compromise everyone was forced to make because the alternative was reading all the opinions in the library.
Using the computer, you are reading all the opinions in the library! That's the difference.
All research starts with the black letter law. All you have to do to be a successful researcher, regardless of the database you rent, is ask yourself the following question: What is the item of information driving my search?
You find those opinions in one mouseclick, using advanced Boolean logic to search a complete index of the opinions. You do this because the results are superior to those generated by trolling through the partial index created by the vaunted West attorney-editors.
A complete index trumps a partial index by definition. But only if you know how to use your computer. Today I've shown you how easy it is to be "advanced."
•CAN ANNOTATIONS RESCUE KEY NUMBERS?
I know what you're thinking. You're thinking statutes annotated.
Think again.
18 U.S.C. § 1344 annotated is a 31,224 word document.
No worries. I read it for you.
Let us not forget, we already have the only five opinions from our primary circuit, citing our statute for our reason. We found them in one mouseclick. Let's compare our results with the results we would have received from West's annotations had we chosen to waste time consulting them.
One of my cases, Confredo, is noted once in the context of defining fraud loss for purposes of sentencing. Another, Seda, is noted once in the context of a constitutional infirmity arising when the Feds charged §§ 1344 and 1014 on the same facts.
The annotations to § 1344 do not, however, mention Koh, Vebeliunas or Zyskind. The ommission of Koh is particularly interesting because it is the only opinion from among my 17 original key number results that is on point.
I wonder if the annotation people and the key number people talk? I wonder if they have any idea that sixty percent of my five opinions are not noted in the annotations to § 1344 and that the KNS fails to note 80% of my five opinions? I'm just asking the question.
Key numbers are a costly, ineffective second steering wheel that at best deliver partial results. Even these partial results are buried in lengthy collections of notes that have nothing to do with the point of law we're focused on.
In stark contrast to the KNS, we receive comprehensive results whenever we fashion search queries around the title and section numbers provided at no extra charge by our friends in the United States Congress. The numbers we already paid for with tax dollars.
•ANNOTATIONS ARE NOT COMPREHENSIVE
Here's the real killer. At least 1,500 citable Federal opinions mention § 1344. West's § 1344 annotations are comprised of 296 headnotes, binned in 43 categories. In the aggregate, these headnotes cite to only 205 unique opinions. A dozen of the 296 headnotes cite to opinions that are not citable because they are not published.
Approximately 1,300 relevant, citable Federal opinions are not noted in the § 1344 annotations. These unnoted opinions represent approximately 85% of all § 1344 law!
Comprehensive? Exacting? Advantageous? Better results faster? And, again, how about that ballsy statement: "West attorney-editors categorize, organize, and summarize the law to help you find what you need quickly and ensure that you don’t miss anything." (emphasis added)
People are doing time for less deceiving claims.
