Case Law Research, Part Two
In my very first post on this blog, back in April 2020, I wrote about case law research. I re-read the original post and share some new thoughts below.
Why should you continue to read this updated post about case law research?
You want to see how four years has changed my thoughts on the most lawyerly part of what I do.
You want to put a yellow triangle on my original post to indicate that there is new authority that questions the original.
You’re a bot that is reading everything I write to develop a machine learning AI duplicate of me.
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Who Reads Cases?
I think that the best lawyers read court decisions constantly to know what the latest interpretations of the law are. And I confirm that any lawyer that submits a citation to a case in court should actually read the case to understand it and the applicable law. But I add some additional thoughts here:
First, there are some lawyers who know the answers to some questions without reading case law to learn everything from scratch. There are some issues that I can advise clients about without going on Lexis for an hour first. And people with that kind of knowledge have a substantial head start on others. But before actually going to court, even those lawyers should review the law to make absolutely sure the law is what they thought because there are frequently surprises. These include changes to the law and also exceptions to general principles.
Second, judges will often do what they want to do. They have some discretion in the issues that just plain do not get litigated a lot and so there is a dearth of on-point precedent. And while precedent is binding and judges are required to follow it, there are other factors in any given case that may persuade a judge and numerous ways that a judge can distinguish the case before her from the precedent. Accordingly, the more I practice, the more open minded I become to considering other factors besides case law research in convincing the court to rule for my client.
A Lot of Lawyers Do Not Read the Cases
Many lawyers do case law research by searching for key words or by using digests that provide summaries of cases. And, when the lawyer finds a good quote in a case or a helpful description in a summary, many cite the case for the proposition they want. This happens a lot, but exposes the citation to immediate criticism if the case as a whole does not support the proposition.
Instead, a lawyer should read the entire case (or at least the entire portion of the case relevant to the subject) to see whether the summary was accurate or what the context of the quote was. Reading the entire case may also help the lawyer discover whether the case had distinguishable facts or whether the case was even deciding an issue comparable to the one the author is arguing.
Reading the cases requires a lot more work than just grabbing citations to random quotes and summaries. It is really boring sometimes. But it produces better results and, if there are no good cases to cite after all of that work, at the very least informs the author that her position may have less support than she thought, which may allow her to accordingly advise the client before possibly losing in court.
Online Research Is Getting Less Expensive
When I was a new lawyer, it was well known that Lexis and Westlaw were very expensive and so my bosses encouraged me to use books when possible or find other workarounds to paying for searches. But times have changed and now it is more expensive for firms to keep their books up to date. And, having shopped around myself for online research tools, there are affordable plans for Lexis and other online search tools. And so, I amend my original statement: online research can be expensive, but it also can be affordable for people with good plans with providers.