In 1999, I founded TheLaw.net Corporation. In 2000 we started selling low, flat-rate, legal research subscriptions with a national scope. Back then we had two things to sell: price and coverage. Today, in our 11th year, we are proud to offer the most intuitive, flexible case law search engine in America at any price.
TheLaw.net would make a great Harvard Business School course on how to grow a sustainable start-up from cashflow. The company has been cash positive since Day One - a success by any objective measure. That said, our biggest challenge has been fighting computer illiteracy.
Legal researchers use the computer differently and badly. That’s why in December of 2008, I decided to start this blog, Legal Research Best Practices. For your information, before I started this blog, the phrase legal research best practices did not appear in an advanced search of Google's index.
I have a populist attitude when it comes to American law. I don’t believe it should be the commodity it has become. I don’t think we should have to go to multi-billion dollar, offshore monoliths like Thomson-Reuters and Reed Elsevier so we can rent databases comprised primarily of information originally paid for by American taxpayers.
The philosophy behind TheLaw.net Corporation is that for a relatively nominal cost, everyone gets to see everything. Thereafter, everyone makes their best argument and may the smartest lawyer win. Go ahead. Call me an idealist. I take it as a compliment.
The original purpose of this blog was to teach individuals how to use the computer to supercharge their search results. In other words, I wanted to teach legal researchers how to do an end-run around all of these annotations, headnotes and key numbers the gatekeepers of legal research - most of whom have never appeared in court - contend represents the Gold Standard.
I wanted to show folks how to replicate the results they receive using these various casefinders, in just a click or two on the computer. Here’s what happened to that idea.
In the course of comparing my results to the resources provided by West attorney-editors I discovered a lot of missing annotations. For instance, I conducted a study of jurisprudence related to the Federal wire fraud statute – 18 U.S.C. § 1343 - the details of which are published here.
West's 1343 Annotated lists approximately 1,000 headnotes in the so-called Notes Of Decisions. Many of these headnotes cite the same opinion for different reasons. Others cite the same opinion for the same reason, but appear in more than one 1343-related category. Accordingly, 1343 Annotated cites to less than 1,000 unique opinions. That’s bad news for West because according to my research, we have more than 3,000 Federal judicial opinions that construe this statute.
Where are the notes regarding the other 2,000 opinions?
West says its annotations are complete, that everything is all in one place and that all you have to do to ensure you don’t miss any important law is become a subscriber. I wonder if this is an aberration? Maybe the attorney-editor assigned to 1343 graduated last in law school, still lives at home with his mother in Eagan, Minnesota and his pocket-protector recently sprang a leak. Who knows?
About a week ago, I'm talking to our intellectual property counsel about this issue. In advance of our meeting and with him in mind, I pull the annotations to 17 U.S.C. § 107. Then I run a national search using TheLaw.net Equalizer 7.0. My results are pre-sorted by Relevance - a term of art meaning search term frequency.
My query is: 17 /5 107 & "fair use" which asks for opinions where the section number appears within five words of the title number, together with at least one appearance of the phrase fair use someplace in the document.
I receive several hundred hits from Federal appellate and district reported opinions. My top 10 reported hits are:
1. 227 F.3d 1110
2. 478 F.Supp.2d 607
3. 203 F.3d 596
4. 211 F.3d 21
5. 142 F.3d 194
6. 523 U.S. 135
7. 862 F.Supp. 1044
8. 847 F.Supp. 142
9. 214 F.3d 1022
10. 37 F.3d 881
Hit No. 1 is noted twice in 107 Annotated.
Hit No. 7 is noted six times.
Hit No. 8 is noted 13 times.
Hit No. 9 is noted once.
Hit No. 10 is noted once.
Hits Nos. 2 thru 6 are not noted in 107 Annotated, even though six of the fourteen headnotes created by West's attorney-editors for Hit No. 3 – 203 F.3d 596 – expressly cite and link to section 107.
Similarly, 17 of the 19 headnotes created by West attorney-editors in connection with Hit No. 5 – 142 F.3d 194 – expressly cite and link to section 107. How does this case not make it into 107 Annotated? Do the headnote people not talk to the annotation people?
Hit No. 6 – Quality King Distributors v. L'anza Research, 523 U.S. 135, 118 S.Ct. 1125, 140 L.Ed.2d 254 (1998) – contains the following language: "The 'fair use' defense embodied in § 107 FN22 would be unavailable to importers if § 602(a) created a separate right not subject to the limitations on the § 106(3) distribution right....In the context of this case, involving copyrighted labels, it seems unlikely that an importer could defend an infringement as a “fair use” of the label. In construing the statute, however, we must remember that its principal purpose was to promote the progress of the “useful Arts,” U.S.Const., Art. I, § 8, cl. 8, by rewarding creativity, and its principal function is the protection of original works, rather than ordinary commercial products that use copyrighted material as a marketing aid. It is therefore appropriate to take into account the impact of the denial of the fair use defense for the importer of foreign publications. As applied to such publications, L'anza's construction of § 602 “would merely inhibit access to ideas without any countervailing benefit.'”
The foregoing United States Supreme Court opinion is not noted in 107 Annotated.
In light of this pattern, the Mission of this blog is to show you how to quickly find the opinions opposing counsel has been missing as a result of reliance on West's manmade casefinders.
Before the computer there was no way to know what you were missing browsing annotations. Before the computer, if you missed important law, opposing counsel missed it, too. You both used the same key numbers, annotations and headnotes to locate any potentially relevant opinions.
Today we can compare results and the upshot is that the index of judicial opinions created by the computer is complete. Indexes and pathfinders created by attorney-editors, by definition, are partial. Complete beats partial every time. But, only if you have a set of best practices in place to ensure you are finding everything you need and nothing you don't need in a couple of mouseclicks.
This blog is intended to ensure - regardless of whether you use West, Lexis or TheLaw.net - that you will know how to find what you need quickly, easily and with confidence. The advanced search techniques set forth herein will keep you from wasting hours browsing headnotes, annotations and key numbers.
You will have more in less time without missing cases, making you the smartest lawyer in the room and a force to be reckoned with!
