The Freedom of Information Act: A Postscript

Apropos to my last post, a news story appeared yesterday: “Final volume in CIA’s official history of Bay of Pigs invasion still in dispute,” about how the CIA is still fighting an attempt by the National Security Archive (mentioned in my last blog post) to get the CIA to release the fifth and last volume of its history of the unsuccessful U.S.-sponsored 1961 Bay of Pigs invasion of Cuba. The invasion was intended to depose Fidel Castro. This fifth volume is a rebuttal by the CIA’s chief historian of the report by the CIA’s inspector general, which blamed the CIA itself for the failure of the invasion.

Because of the FOIA (and the National Security Archive), we know much more about the Bay of Pigs invasion than we otherwise would.

The Freedom of Information Act: An Introduction

A friend told me the other day about a post on Wired’s Danger Room blog, “CIA Committed ‘War Crimes,’ Bush Official Says.” The post described a 2006 memo written by State Department counselor Philip Zelikow, released under the federal Freedom of Information Act [FOIA], in which he concluded that interrogation techniques such as “waterboarding, walling, dousing, stress positions, and cramped confinement” were those “least likely to be sustained” under Article 16 of the Convention Against Torture. (Here’s more information about these techniques.) This contrasts with the Department of Justice Office of Legal Counsel “torture memos,” two of which Zelikow cites to.

Some disagree with the idea that the FOIA is important in allowing Americans to know what their government is doing. Antonin Scalia, when he was a professor of law at the University of Chicago, and the editor of the journal Regulation, wrote in that journal, in an article called ”The Freedom of Information Act Has No Clothes,” that the FOIA “is the Taj Mahal of the Doctrine of Unintended Consequences, the Sistine Chapel of Cost-Benefit Analysis Ignored” (Antonin Scalia, The Freedom of Information Act Has No Clothes, REGULATION, Mar.-Apr. 1982, at 15, reprinted in Robert G. Vaughn, FREEDOM OF INFORMATION (2000)). To be fair, Scalia, in his short article, writes that “They [the Freedom of Information Act of 1966 and its 1974 amendments] were promoted as a boon to the press, the public interest group, the little guy; they have been used most frequently by corporate lawyers” as a tool for retrieving information held by the government about private entities–though he provides no empirical support for this proposition (Id., at 16).

But despite the now-Supreme Court Justice’s view, there are other important, revelatory examples of information uncovered as a result of the FOIA. I spoke with Emily Willard, research associate at the National Security Archive, a nonprofit founded in 1985 as (to quote its “About” page) an “investigative journalism center, research institute on international affairs, library and archive of declassified U.S. documents (“the world’s largest nongovernmental collection” according to the Los Angeles Times), leading non-profit user of the U.S. Freedom of Information Act, public interest law firm defending and expanding public access to government information, global advocate of open government, and indexer and publisher of former secrets.”

Emily’s favorite FOIA tidbit is a revelatory quote from the minutes of a March 10, 1975 meeting between Secretary of State Henry Kissinger and Turkish Foreign Minister Melih Esenbel, who was expressing his displeasure with the arms embargo on Turkey passed by Congress after Turkey invaded Cyprus in 1974. The minutes record that Kissinger said: “Before the Freedom of Information Act, I used to say at meetings, ‘The illegal we do immediately; the unconstitutional takes a little longer.’ [laughter] But since the Freedom of Information Act, I’m afraid to say things like that.”

Emily went on to talk about the Zelikow memo. “The entire document, except for a few things, was completely released, even though it’s so controversial, and the government, the Bush administration, had tried to destroy all evidence of it.” Emily went on to describe this as a really great example of the use of FOIA and why it’s so important. If not for this system of checks and balances, she said, “how would we have ever known that this memo even exists. We would have heard about it, from the government official who wrote it, but we would never have been able to see actually what was being covered up, written on government letterhead.”

But enough about how interesting FOIA can be–it can also be a very useful–and cost-effective–lawyering skill. As Antonin Scalia also wrote, “The necessary training for any big-time litigating lawyer now includes not only the cross-examination of witnesses, but use of the Freedom of Information Act.” (Scalia, supra, at 16).

And there are many resources on the Web to help with FOIA requests. Two very good sites are:

The Freedom of Information Center, a a reference and research library at the University of Missouri’s School of Journalism. It was founded in 1958, and it and its founders were instrumental in the enactment of the FOIA. Their website has many resources, from a collection of sample FOIA and Privacy Act (the federal law that protects personal information and allows individuals access to their own information–useful in some types of government record requests) letters, to guides to the process, to indexes to their collection of government documents.

The Reporters Committee for Freedom of the Press, whose print publication the Federal Open Government Guide, a treasure trove of information on the care and feeding of the FOIA, is available for free online.

And finally, the National Security Archive itself has a guide that Emily says is aimed at the everyday FOIA requester, Effective FOIA Requesting for Everyone.

That will get you started. For more information, let the Web be your guide… or ask your local librarian.

UPDATED 04/16/2012: Added context about Scalia’s article, and added a link to the National Security Archive’s FOIA guide  Effective FOIA Requesting for Everyone.

Organizing with Evernote: “Mailing it In”

I rely on Evernote, the ubiquitous note-organizer-on-steroids program, to keep track of all my stuff. Evernote works on Windows computers, Macs, iPhones, iPads, Android devices, and even on the Web wherever you have a computer. (See my last blog post, “Evernote–One Tool to Rule ‘em All” last November.) One easy, super-useful way to stay organized with Evernote is to email it whatever you need to keep track of. To do this, first you need to know your personal Evernote email address.

In Windows, go to Evernote, and click the “Usage” icon, at the top right corner of the Evernote window, just below the title bar and window control buttons. The third line of text down will start with “Email Notes To:” and end with an email address, probably ending in “@m.evernote.com.” That email address is unique to your Evernote account. Any email sent to that address automatically becomes an Evernote note.

On the iPad, open Evernote, then click the “Settings” icon (the picture of a gear in the lower right corner of the Evernote screen). Under “Settings,” tap “Evernote Email Address,” and you’ll see the address. (Clicking “Reveal in Contents” will help you add the address to your iPad address book.) (Check out “Chapter 4: Safari” in Apple’s iPad User Guide.)

You can easily get page links to webpages from Safari, the built-in iPhone and iPad Web browser, into Evernote by emailing them. iPhones and iPads run a simpler version of Apple’s Safari browser. Evernote does have a Web clipping bookmarklet for the iPhone and iPad but it’s very slow and doesn’t work well. One advantage to the bookmarklet is that it can clip the whole page. But if you just want to get something “quick and dirty” from Safari to the iPad, just email it to Evernote.

But how, you ask? Like this: Any email sent to your personal Evernote address automatically becomes an Evernote note. If you add “#important #work” to the subject of the email, the note will be created with the “important” and “work” tags (if they already exist). If you add “@todo” to the email’s subject, the email will be added to the “todo” notebook (if it already exists). You can add as many tags as you want, but only one notebook–and the notebook (“@notebook”) has to be the last thing on the subject line. You can add tags and notebooks using the Evernote application on your computer, or using the Web version of Evernote.

To send an email from within Safari, tap the Safari Action icon (the fourth icon from the top left of the Safari window, right next to the address field–it looks like a box with a curved arrow pointing out of it), which brings up the Action Menu. Then, on the Action Menu, tap “Mail Link to this Page.” When the email displays on your screen, the cursor will be in the “To:” field. Start typing “Evernote,” and once you type enough letters, your Evernote email address will show up in the “To:” field, if it is on your Contacts list.

There’s a special syntax you can use to tag that note, and to pick which notebook the email should go into. If you add “#important #work” to the subject of the email, the note will be tagged with the “important” and “work” tags (if they already exist). If you add “@todolist” to the email’s subject, the email will be added to the “todolist” notebook. (Here are links to documentation for this syntax, and more information on the Evernote blog.)

You can do the same thing with Outlook, or your favorite email program. Forward an email to your personal Evernote address, add tags (using the “#” character) or notebooks (using the “@” character), and the new Evernote notes will show up already categorized and sorted.

This is a new idea for me, one I just set up and started to use. I’m starting with three main notebooks I’ve been emailing links into: @action, for things I want to act on, like to-do items; @info, for things I need to remember or use, like schedule changes or notes; and @toread–for weblinks or books (you can email Amazon weblinks to Evernote too!)

As soon as you click “send”–and sync Evernote, just to be sure–your email will be safely ensconced in your favorite organization tool!

Evernote–One Tool to Rule ‘em All

Ever use a notebook? Spiral-bound, reporter’s, fauxhemian Moleskine even. Sure–everyone does it. Ever miss typing, bullet points, check-boxes? Ever lose or misplace your notebook, wish you had it with you at work, school, home, bed? Ever lose it and wish you had a backup? Right? Right? Well, let Evernote be your friend. Evernote is software, a service, a notebook–your everywhere notebook. Click “New Note.” Type. Paste. Drag and drop. Sync. Go home, the note’s there. Pull out your iDevice, Android, Palm Prē, Blackberry even–ditto.

I used to be a OneNote addict “power user.” But I was frustrated that it was hard to sync and impossible to use unless I was at a Windows computer. So if you like OneNote, c’mon, drink the Kool-Aid. Evernote will do almost all of what OneNote will do (Evernote’s formatting isn’t as flexible), plus, Evernote works almost everywhere (hence its name).

Evernote (http://www.evernote.com/) is software that works like a virtual notebook. It has programs that work on most gadgets. It works with your data in the cloud on most devices, and keeps copies of your notes on your computer or iPad. Access the notes–with rich formatting, graphics, files and a PDF reader–anywhere, even via the Web for when you’re using someone else’s computer.

And like good technology, Evernote:

• Doesn’t get in your way, and
• Lets you use it your way–from simple to complicated.
• Has a low “geek factor.” If you want to, just enter notes, then search easily by note contents.

Unless you want to get your geek on, in which case you can tag notes, drag in files, PDFs; drop in scanned notes or even take pictures of notes or signs with mobile devices. Evernote recognizes text in pictures. You can even use links to specific notes that can also be shared with non-Evernote users!

Use Evernote:

• As “The Notebook” (everyone uses one)
• Try using it for:
• Notetaking
• To-dos
• Shopping lists
• Snippets of legal drafting forms and language
• Recipes
• Files
• The Great American Novel (or even Law Review Article)

Notebooks and scraps of notes go everywhere–where you want and where you don’t. Your great new idea doesn’t do any good if it’s on a scrap of tablecloth in the pocket of your other shirt. And when you have seventeen notebooks full of notes, you’re out of luck finding stuff, unless you have your own personal archivist. Notebooks aren’t secure, aren’t backed up, are impossible to organize–and can’t be searched!

Evernote solves all these problems.

And the price is right–free! (There is a premium version, but at $5/month, it’s cheaper than your Moleskine habit.)

Evernote works everywhere: computer, tablet, desktop and mobile Web if your device doesn’t support it directly. It’s easy to organize with–great tagging, excellent, intuitive searching (including scanned and photographed text–take pictures of handwritten notes, and search them!), and (much) more power if you need it. It records audio on mobile devices, and stores files in the cloud with notes.

Evernote is compatible with Outlook–send emails directly to Evernote, with formatting. And clip Web pages from many browsers, and support for others, like Safari on iPhone and iPad.

Evernote does have some problems. Formatting in notes can be wonky, especially on the iPad–rich formatting there is new and still being worked on. Unlike files, if you open and edit a picture in a note, the changes don’t always appear.

The Wall Street Journal’s personal technology columnist Walt Mossberg had some issues with it (http://allthingsd.com/20100120/evernote-review/): data limits and other restrictions (since eased) with the free version, differences between apps on mobile platforms, and buggy Web clipping.

It can also be slow in mobile Safari–I usually just email Web links to Evernote.

Even so, Mossberg liked Evernote–a lot.

So give Evernote a try. You don’t have much to lose (except stacks and scraps of paper). And you may really like it.

Some Evernote resources:

• Evernote intro (Purdue University Information Technology):
• http://wiki.itap.purdue.edu/display/INSITE/Evernote
• Evernote Essentials ebook:
• http://nerdgap.com/landing/evernote-essentials/
• Evernote GTD ebook:
• http://ebook.dangoldesq.com/

The “Car Parts” Theory of Legal Research

A Theory

For a while now, I’ve been working on a theory about how legal research works. Using legal research tools is a hard paradigm to share with new law students, even ones who have experience with undergraduate research. It may be, as Anne Elk, A. Elk [Miss], put it, “My theory, that I have, that is to say, which is mine, is mine,” (Cough. Cough, cough), but I’d be thrilled if you steal, uh, borrow it, use it—and tell me what you think.

Cars

Every make of car—Honda, Toyota, Chevy, Ford—has parts that do the same things: alternators, starters, fuel injectors, fuel pumps, for instance. But parts from a Toyota won’t work in a Chevy, and so on. That’s because the parts do the same things, with different shapes and sizes and connectors. And remember: All those parts are supposed to connect: fuel injector, fuel pump, gas tank. But if you want your car to work right, all the parts have to connect together properly.

Research tools

There are a lot of different projects you might be doing legal research for. You might be working on a memo for LSV; a pleading or brief for an employer, moot court, or mock trial; or a seminar or law review paper or research for a professor. Like cars, all of the projects are similar, and go forward in similar ways. But, also like cars, they look different (trucks, economy cars, sports cars, SUVs) and have different uses.

And you will find a lot of different “things” (sources of law, or just “sources”) when you do legal research: constitutions, cases, statutes, regulations (kind of “junior statutes”), and lots of different types of secondary sources, like law review articles, legal encyclopedia articles, digest summaries, and case annotations.

These “things” are found in different research tools, in books and online: annotated statutes, case reporters, journals, legal encyclopedias, digests, and American Law Reports.

All of these research tools have the same parts. The books have tables of contents, indexes, and tables of cases. The Web resources have basic and advanced search functions, tables of issues and articles. But the parts don’t work exactly the same way… because just like an alternator from a Chevy and a fuel pump from a Honda, neither the resources nor the parts themselves are interchangeable.

But—and this is important—just like a working Honda’s fuel pump and gas tank, the parts are also connected, forward and backward, by the references and citations.

Connections

Use connections. The alternator connects to the battery. The connection runs both ways—and won’t work either way unless there is a connection.

Citations aren’t just something you have to use the Bluebook to figure out how to format. Look at the citations in the “things”—sources—you have, and use them to find other sources. Looking at citations in your sources, and the different sources they cite to, lets you figure out what all the sources you have to say about each other. Sources are written by people (obvious, I know). People disagree. Some disagreements get resolved—when a higher judge disagrees with a lower one. But some don’t—when two judges at exactly the same level, or in different states, disagree.

Reverse Engineering

Oh, about the Bluebook. Think of it as being the shop manual for your car. One use for a shop manual is to figure out how to put a new fuel injector in your car. But you can also use the shop manual to take the car apart, or find a part number for the new cylinder-head gasket or fuel-tank float you need.

You’ve been taught, or learned, to use the Bluebook to look up how to format a Georgia Supreme Court citation, for example. But if you have a citation that you can’t completely figure out, but you’re pretty sure is from Michigan (because it has “MI” or “Mich.” in it) or Colombia (“Colom.”, ditto), use the Bluebook’s tables to look up the citation format. (There’s a general rule of thumb here: As a favorite writer of mine put it, “[W]hen faced with a problem you do not understand, do any part of it you do understand, then look at it again.”)

Other Places to Look

There are different shop manuals for different cars, right? Some jurisdictions have their own “shop manuals.” Florida, for instance, has two: An official one, Fla. R. App. P. 9.800, “Uniform Citation System,” and a semi-official one, the Florida Style Manual, that Fla. R. App. P. 9.800(n) tells you to use if Fla. R. App. P. 9.800 doesn’t have the citation style you need.

Postscript

I really like this “theory” (an extended metaphor, really), for its usefulness and concision. I also think it’s very pedagogically interesting. I plan to do some research on that aspect for a follow-up blog post. Anyway, that’s my theory. Please let me know what you think—post a comment, or email me at silvermanmi@nsu.law.nova.edu.

Getting to know LLTC: Mitch Silverman (addendum)

Wups–I forgot to post my picture with my blog profile!

Here's me, the day my bright, shiny new nameplate was first put up.

Getting to know LLTC: Mitch Silverman

Where did you grow up? How did you come to be here?

South Florida—I was five when my parents and I moved here from Brooklyn. Nonetheless, I’m not a Floridian—"You can take the boy out of Brooklyn, but you can’t take the Brooklyn out of the boy." I have a long, synchronicitous connection with this cluster of schools NSU is part of here in Davie (the South Florida Education Center). I went to Nova’s University School from kindergarten through 8th grade, then off to the public Nova High School. I went away to college, then dropped out (it took me 11 years to get my B.A.!). During this time, I took classes at Nova, one a legal research and writing class. I worked in a computer software store for two years, then came back to Broward Community College (now Broward College) to get my A.A. Off to finish my B.A., at New College of Florida (on a trivia scholarship—really!). I went to law school at FSU (though my loyalty is completely to New College). Then I practiced law for a while—which was not my cup of tea, really. So I went back to school to become a librarian… and now here, back home again.

When did you begin working for the LLTC? 

I started working here in November 2009, as a temporary reference librarian, and became a permanent employee in May 2010.

What do you do at LLTC?

As Outreach and Emerging Technologies Librarian, I’m the LLTC’s point person for reaching out to and helping students, alumnae/i, and local practitioners. I work a lot with our faculty and their research assistants as well. I guest-teach in and prepare materials for law school classes, help library patrons with questions at the Reference Desk, and also do longer research consultations.

What do you like best about your job? 

All of the above. (No, really.) A lot of what I love about the law is doing research and pulling all the information together. This is the part of the law that few lawyers do much of, and that librarians do all the time. I get to work with many different topics and areas in the law—I love variety and being exposed to different things. I like to say that I can get interested in any area of the law for half an hour! Helping students, especially, is a blast—when the “light bulb” lights up over their heads. I had a student tell me “I just enjoyed doing legal research—who’d have imagined it?” That made my year.

Also, I really like the “Emerging Technologies” part of my job. Part of my job is like playing a huge computer game called “the Web”—news, blogs, software, email, Facebook (which I do use for work). I even use the so-called “deep Web”—databases, like Westlaw and PACER, that aren’t indexed by search engines like Google. I have a new iPad that I am seriously grooving on—I thought it would mostly be a tool, but it’s turning out to be a serious workhorse as well. (Plus, my wife and I watched an episode of “House” on it—an amazing experience, watching TV on something that has the form factor of a book.)

What are your proudest accomplishments on the job?

The way my outreach to our students has blossomed. I put together a collection of research resources that I presented in Professor Jarvis’s American Legal History class. I volunteered to help his students with their research for their papers, which was helpful for them and rewarding for me. I started telling other students about consulting with me—and Professor Jarvis’s students told their fellow students too!

Also, because I love this job, I’m always networking with students, practitioners, and even our faculty—“selling” myself, offering whatever help I can provide. I’m already on my second box of business cards!

What do you enjoy doing in your spare time?

I read a lot, though not as much fiction lately as I would like. I love Web browsing—I get a lot of technology information that way (a busman’s holiday). My wife and I love live theatre—we’ve seen plays, excellent, professional local theatre, and all very different—the last four weekends in a row. I love good food—not necessarily gourmet, a good hamburger can be a wonderful thing—but excellent, unpretentious food of just about any style and from just about anywhere is wonderful.

Favorite food?

Lately I’ve been craving spicy food, and really vinegary pickled vegetables. I love Jewish ethnic food—lox, chicken soup. My wife is from the Caribbean coast of Colombia, and I get to eat a lot of neat stuff that she’s introduced me to (I’m a recent mango addict). Indian, Italian, Greek, Irish, pan-Asian, Vietnamese (I’m very partial to phở, the Vietnamese soup), Latin (anything from Argentinean to Colombian to Mexican, which are not even similar), barbecue… I could go on, but now I’m getting hungry.

Favorite book?

I love reference books—surprising, right? (One thing I love about my wife is that she owns and uses more dictionaries than I do—she’s a professional translator.) Fiction, well, I love John Sandford, the science-fiction writer Neal Stephenson, and the fantasist Neil Gaiman—his story “A Study in Emerald,” a mash-up of Sherlock Holmes and H.P. Lovecraft, is amazing. Speaking of Lovecraft mash-ups, Charles Stross’s Laundry series, a mash-up of, get this, Lovecraft and Ian Fleming (creator of James Bond) is astoundingly good, funny and terrifying both. I’m reading Susan Collins’s book Hunger Games, at Becka’s recommendation—slow going for me right now, but very good.                                                                                                                         

Do you have any other interesting connections to NSU Law?

I’ve known Professor Richmond, Mike, and his wife, Professor Fran Tetunic, for at least twenty years. I was in a play Mike directed at the synagogue I used to go to, “The Convertible Girl” (written by Neil Simon’s older brother). I played a rabbi. That was an experience, let me tell you.

Is there any particular advice you would like to share with students?

Two things. First, the research and writing skills you learn in LSV and improve in your upper-level classes and seminars are critical in the practice of law. Lawyers write all the time: memos and letters, some of which are painstaking, time-consuming efforts, like demand letters; but also motions and briefs. This sort of writing is required in federal court: the local rules for the Southern District of Florida (S.D. Fla. L.R. 7.1(a),(c)) mandate that memoranda of law in support and in opposition be filed for almost all motions. Florida state-court motions on many substantive and procedural matters will also need to include case law and arguments, or be supported by separate briefs.

Writing a seminar paper—a good seminar paper—involves the same skills as writing a legal brief. Finding and evaluating materials, analyzing them in written form, using those materials to construct an argument, refining your analysis and arguments through successive drafts, citation-checking, even proofreading—these are all an important part of lawyering. Even in transactional work, skill at researching, analyzing, synthesizing, arguing, drafting, and revising all require practice. One of the most difficult—and potentially problematic—things a transactional lawyer will be called upon to do is to draft an opinion letter, which very much requires these skills.

And now for something completely different. Storytelling is very important to lawyers also. The process of laying out a case—from demand letter, to complaint, to discovery, to pretrial practice, and especially arguing a case to a judge or jury—is all about the story you tell and who you portray as the good guy and who as the bad guy. Even as a transactional lawyer, when negotiating, for instance, you want to craft a narrative with the other lawyers and businesspeople you work with in which everyone wins.

One of the hardest things I’ve done here was when an LSV professor asked me to teach her students about storytelling research. I despaired of where to start. But once I was reminded of how important storytelling is, and how ingrained into and essential it is in our legal system, I was able to approach the class in an effective, useful manner.

Oh, and a third piece of advice (if any of you have gotten this far). This stuff you’re getting thrown at you in law school is hard—confusing, terrifying even. And sometimes it makes no sense. Ask questions—lots of questions. Ask your professors—even in class. (It's a good way to avoid being called on when unprepared!) Ask other students. Law is a very collaborative profession; you should get used to cooperating with your peers now; that kind of cooperation is essential to being an effective lawyer. Also, ask us—that’s what we’re here for. Ask us research questions. Ask for advice—if you talk to me about your interests, I might be able to suggest a seminar class you might like, or help you find a paper topic that might work for you. I might even be able to offer a bit of career advice (or give you one of Career Center Associate Director Denise Corin’s business cards).

The concepts you are learning in your subject-area classes are very important in practicing law. You may not really get them, or see how they interact, until you use them in practice—and that's okay. But your practical skills are also very important. Research and writing (learned earlier and improved in law school), active listening (including asking appropriate questions at the right time), storytelling, networking, and accounting—all of these skills will help you to be a better lawyer. Anything I can do to help you develop these skills—to become, or be, a better lawyer—is not just my job, but a real pleasure.

Is Teaching Cost-Effective Legal Research (Im)Possible?

An interesting blog post appeared on the Dewey B Strategic blog (the blog subhead: “Risk, value, strategy, libraries, knowledge and the legal profession”), posted by attorney and DLA Piper Director of Research Services and Libraries Jean P. O'Grady, on May 5, 2011: “The Myth and the Madness of Cost Effective Lexis and Westlaw Research Training.” It may be impossible to teach cost-effective legal research using Westlaw and LexisNexis in the manner the author describes. That said, I think the problem Ms. O’Grady is addressing is as much an result of her approach as it is a reflection of reality.

I think that there are (at least) three problems with Ms. O’Grady’s blog post. First, the tone of Ms. O’Grady’s blog post is rather negative: It criticizes, but suggests no better approaches. There may be a straw-person problem here as well: I don’t really recognize or understand the extremely detail-oriented model of cost-effective legal research instruction she discusses. She mentions that her solutions to the problems she diagnoses will be in a subsequent post, so I hope she describes her model further then. Second, her post is oriented toward large law firm research, and takes a trees-for-the-forest approach. And third, Ms. O’Grady seems never to have worked outside of BigLaw firms (that is, firms ranked in the American Lawyer 100, or of similar size), where the vast majority of lawyers do (see some numbers on firm size, below). Her approach to legal research and to cost-effective legal research teaching, reflects this: if more information, be it legal research or cost effective rules, is good, then more is better. BigLaw litigation tends to be massive, with massive discovery, trial–and legal research–budgets.

Law Practice and Overly-Expensive Memos

According to our Westlaw educational representative, there are some frightening numbers associated with computerized legal research. BigLaw firms spend approximately $150,000 a month on their Westlaw accounts. By comparison, if it were even possible to buy the equivalent of law-student Westlaw access, that sort of account alone would cost about $100,000 a month.

Such huge legal-research budgets presents a false picture of legal research in the real world of lawyering. As one of the commenters on Ms. O’Grady’s post, Chicago-Kent Law professor and Director of the Legal Research and Writing Program Mary Rose Strubbe (who practiced for four years with a small law firm doing complex federal litigation), wrote, “you imply that all or most lawyers are working at large firms, with librarians. In Illinois, for example, far fewer than 20% of the licensed lawyers work at private firms having more than 25 lawyers.”

These numbers are close to Florida’s. According to the Florida Bar’s 2010 Economics Survey, 65% of Florida attorneys work in firms of 1-5 attorneys, and 77% work in firms of ten attorneys or fewer. (DLA Piper, according to their website, has “4,200 lawyers located in 30 countries and 76 offices.”)

Given the costs of computerized legal research, it is extremely unlikely that small-firm lawyers have access to resources even approaching those available at BigLaw firms–unless they go to a library with free (limited) Westlaw or LexisNexis access.

At the run-of-the-mill small law firm, unlike BigLaw firms (which almost certainly pay a flat rate for their legal research), when a lawyer does legal research using Westlaw or LexisNexis, the meter is running. This can have frightening results. The $1,300 to $6,000 memo is real. A student of University of Arizona Law reference librarian and adjunct assistant professor Sarah Gotschall ran up about a $6,000 legal-research bill (but at least got an iPad for the $800 he eventually had to pay out of pocket). A friend of mine did it to the tune of $2,000. Even I spent $1,300 doing some in-house research, unaccustomed as I am to having to account for the cost of Westlaw access.

Granularity and “Easing In”

A major problem with Ms. O’Grady’s approach to cost-effective legal research training is this: She thinks that the solution to trainee lawyers learning cost-effectiveness is to give them a lot of detail. So much so, in fact, that she cites the number of databases that Westlaw and LexisNexis have between them, about 100,000–and implies that new legal researchers should ideally have some idea about the pricing of all these available modes of research.

How can newly minted legal researchers be expected to do this? They don’t understand some of the resources they are accessing, and certainly not their importance. New lawyers have all heard about the importance of running their cases through a citation index, but what percentage have internalized the importance of making sure all the cases they rely upon are good law? (It may take a courtroom loss for that to sink in.) Given that, how can a new lawyer figure out whether the importance of a resource justifies its cost? Law students and new lawyers should be “scared straight” slowly, and, to begin with, given a framework for understanding the costs of Westlaw and LexisNexis legal research. But that framework shouldn’t be more complicated than “This is expensive—BOO!”, with the “BOO,” of course, being the $6,000-memo story and its equivalent.

Citation Indexing

The most important example of the importance of a resource justifying its cost is, of course, citation indexing. And unfortunately, this is one area where there is no way around the Westlaw and LexisNexis duopoly. Their databases are the only ones set up for making sure that a case is still good law. Fortunately, the cash prices for this per case are not too excessive: $15.00 to Shepardize a case–cheap compared to losing a case through incomplete research. (KeyCite pricing varies by type of material.) Fastcase apparently gets asked about this a lot, and has talked about it internally. And, to speculate, doing so would let them put a big wedge into the duopoly. But that kind of database analysis, perforce done at least in part by hand, is obviously a huge undertaking. Access to ALR or forms or even headnotes is nice. But if a case is not good law, then much of the research that involves it is worthless.

BigLaw–Part of the Problem

Ms. O’Grady several times suggests that there are two sides to this dispute: The terrible information vendors, who are the true culprits in the spiraling, pathological cost of computerized legal research, and us, the virtuous law firms bearing the brunt. She even says so in a bold-faced statement: “Subscribing to the myth of cost effective research training keeps the focus off the true culprits and keeps us from demanding a real solutions [sic].” But how can BigLaw be expected to help solve the cost-effective legal research problem–boycott Westlaw and LexisNexis? The BigLaw machine would stop–obsessively over-researching issues, and the attendant huge amounts of time for which their model allows client billing, encourages Westlaw and LexisNexis, not discourages. BigLaw is part of the problem, not of the solution—for the moment, not even potentially.

Market forces may solve or help solve this–but only when the full-fee model that BigLaw firms hew to are replaced by different practice models and more sensitive billing models, as the economy changes. (The Economist ran an excellent article recently about how law firms are becoming more nimble and international, changing focus more rapidly, and retrenching, on May 5, “A Less Gilded Future.”)

A Conclusion and Some Solutions

Ms. O’Grady’s analysis is interesting and relevant. Nonetheless, she does have issues: a rather contrary tone, an over-detailed approach to cost-effective legal research instruction, and an overwhelmingly BigLaw background, far from the much more common small-firm law practice environment. Any one of those issues would be worrisome. Given all three factors, I think her perspective is somewhat unrealistic.

I do have some student-tested solutions of my own:

• a more general approach relying on a general cost-benefit comparison, perhaps;
• running some Westlaw and LexisNexis numbers with law students, clerks, and new lawyers;
• explaining, with examples and numbers, that Westlaw and LexisNexis are all but prohibitively expensive for small-firm use;
• teaching free and low-cost resources (where possible, except for citation indexing)
• the new flat-rate subscription plans Westlaw and LexisNexis are offering to solo and small-firm lawyers
• not to mention a realistic view of the contribution of BigLaw firms to the exorbitant, increasing price of computerized legal research and the lack of any responsiveness from the Westlaw and LexisNexis duopoly.

But I will go into more detail about these ideas, and examine some other possibilities later, especially after I can examine Ms. O’Grady’s proposed solutions.

Freedom of Information Law: Opportunity and Threat?

A New York Times article this last weekend described a novel use of freedom of information law. The new owners of CourseRank.com (a course information website for college students like ratemyprofessors.com), requested aggregate grade data by course and professor from some 533 colleges nationwide, including Florida Atlantic University, Florida Gulf Coast University, and the University of Florida. (Nova Southeastern University is included on the website, but does not seem to include grade distributions, which makes sense since it is not subject to Florida open-government law.)

Lisa A. Phillips, the author of the New York Times story and a SUNY New Paltz journalism professor, has ethical qualms about the impact this will have on grade inflation. She quotes experts who say both that it will contribute to grade inflation, by directing students to classes and professors with “better” grade distributions, and discourage it, but revealing which professors grade too leniently.

But what I (and my most excellent colleague Becka Rich, who brought this to my attention) think is more interesting are the implications of this.

First, there are the ethical issues, some of which are raised above. Second, there is the conflict with FERPA. The second question Becka asked me was, “Could this happen in Florida?” We now know that the answer is “Yes.”

This type of open-records request can be used in public-policy research: see Richard J. Peltz, From the Ivory Tower to the Glass House: Access to “De-Identified” Public University Admission Records to Study Affirmative Action, 25 Harv. BlackLetter L.J. 181 (2009). It has also been used by mainstream journalists, as with a recent Chicago Tribune series on politically preferential admissions at the University of Illinois, Urbana-Champaign (see all Chicago Tribume articles about the University of Illinois, Urbana-Champaign).

Non-profit financial research–a blog post by Becka Rich

My most excellent colleague Becka Rich, Faculty Services/Reference Librarian, is one of the bloggers on the American Association of Law Libraries Research Instruction and Patron Services Special Interest Section blog, http://ripslawlibrarian.wordpress.com/.

 

She just posted her second blog post, on researching nonprofits using their IRS tax forms (which in most cases are required to be available). It’s very useful to know, whether you’re planning your holiday donations, representing a nonprofit–or suing one.

The blog post is at: http://ripslawlibrarian.wordpress.com/2010/12/10/how-much-do-they-spend-on-their-mission-a-guide-to-non-profit-financials-research/.