How Do You Feel About "Good Enough?"

By Karen Westwood posted 7 days ago

  
#WestwoodandCarlson

@Michael Carlson I'm putting some final touches on the Hennepin County Law Library CLE powerpoint I'll be presenting this Friday.  A colleague (Charlie Wilson at Ballard Spahr) and I wrote an article ("How Do You Feel About "Good Enough?": Another Look at Citators") and we're going to discuss the article and ethical issues around performing competent legal research.  Charlie and I have both spent some time trying to bridge the distance between what is taught in law school (extensive, exhaustive, expensive research) with what attorneys confront in practice (time and money limitations).  Especially for solo and small firm attorneys who make up a fair percentage of our Hennepin County Law Library patrons, we wondered whether there was an objective way to determine what was "good enough" both ethically and competitively for attorneys who can't afford the premium research platforms.  We chose citators as a discreet research tool to analyze.  The results reminded us that even the most expensive and historic citators don't give consistent results; and that caselaw by its nature defies an easy solution for determining whether a case remains "good law."  

You've read the article, @Michael Carlson - what did you find that was interesting in our results?  Hope you'll be able to join us on Friday at 12:15 in the Jury Assembly Room on the 24th floor of the Courts Tower.  No advance registration required (and it's a free Ethics credit!).
Karen

​​​
1 comment
4 views

Permalink

Comments

3 days ago

It's a great article and an interesting read. Thanks! I think the point you make about time pressure is an incredibly important one. All citators have limits that can cost researchers valuable time.

First, I'm not terribly surprised that there was so much variability between the citators on direct negative history. In my time at Thomson, KeyCite 'errors' were not common but also not unheard of. (I was a little surprised by the issues you reported with Bloomberg, however.) Generally, I don't believe it's a good idea to rely exclusively on red flags or other symbols. None of these tools are meant to be definitive. They are meant to warn you that the system identified some negative history -- it's a 'flag.' In my view, what you get from any of these systems is a potentially valuable shortcut. The problem is, we don't know what we don't know. Taking the next step can be time consuming.

Fortunately, not every case is Twombly which has 484K citing references on Westlaw including nearly 224K cases*. Often, the citing references to your case will number fewer than 10 and you can easily review all of those for the relevant point of law. But what if there are more than 10 references? One of your cases, State v. Martin, 695 N.W. 2d 578 (Minn. 2005), has 50 case law references on Westlaw and 51 on Fastcase.** Fortunately, both systems have flags for this case. In this case, you likely have the shortcut you need. But what if there's no flag? Or, what if you're looking for other negative or distinguishing treatment? 50 cases is a lot to review, one-by-one. There are tools and strategies for performing that review that don't include opening each case and reading it from beginning to end. Depth of treatment indicators, for example, can help us narrow results. This can even be done on Google Scholar for free:



Citators are super valuable tools but I think they aid the task at hand, they don't perform the task entirely. Researchers need to know the limits of any tool and how to use other resources when those limits are reached. Otherwise, the process can be very inefficient and will eat up time most lawyers don't have.

*Fortunately, you won't need a citator if there's a change to the rules cited in Twombly or Iqbal. You're going to hear about it from another source.

** Hmm.. I don't know why the difference.