KEEPING BOOKS ON THE HORIZON: TEACHING LEGAL RESEARCH TO THE GOOGLE GENERATION

1. KEEPING BOOKS ON THE HORIZON: TEACHING LEGAL RESEARCH TO THE GOOGLE GENERATION IAN GALLACHER SYRACUSE UNIVERSITY COLLEGE OF LAW

2. GENERAL DECLINE IN BOOK READING • In 1992, 60.9% Of Population Read At Least One Book • In 2002, 56.6% Of Population Read At Least One Book • In 1992, 54.0% Of Population Read At Least One Book Of Literature • In 2002, 46.7% Of Population Read At Least One Book Of Literature Reading At Risk: A Survey Of Literary Reading In America, at ix National Endowment For The Arts Research Division Report # 46 (June 2004)

3. GENERAL DECLINE IN BOOK READING • Between 1982 And 1992, Decline For Literary Reading Was 2.9% • Between 1992 And 2002, Decline For Literary Reading Was 7.3% • In 18-24 Year Olds, Only 42.8% Engage In Literary Reading, Decline Of 28% In Last 20 Years • “[A]t the current rate of loss, literary reading as a leisure activity will virtually disappear in half a century.” NEA Report at x-xiii

4. OUR STUDENTS • 72% Use Internet More Than Library • 16% Use Internet And Library About The Same • 9% Use Internet Less Than Library • 2% Don’t Know Pew Internet & American Life Project: College Students Survey (2002) (margin of error ± 3.5%)

5. OUR STUDENTS During direct observations of college students’ use of the Internet in a library and in campus computer labs, it was noted that the majority of students’ time was not spent using the library resources online. Rather, email use, instant messaging and Web-surfing dominated students[’] computer activity in the library. Almost every student that was observed checked his or her email while in the computer labs, but very few were observed surfing university-based or library Web sites. Those students who were using the computer lab to do academic-related work made use of commercial search engines rather than university and library Web sites. Id.

6. OUR STUDENTS • 1991-2: 260,000 books reshelved • 1991-2: 3.1 million photocopies • 2001-2: 85,000 books reshelved • 2001-2: 880,000 photocopies

7. OUR STUDENTS • 94% Of Teens Have Used Internet For School Research • 71% Of Teens Have Used Internet As Major Source For Recent School Project Pew Internet & American Life Project: Teenage Life Online (2001)

8. OUR STUDENTS The Internet Has Had A Positive Impact On My College Experience In General: • Strongly Agree: 34.3% • Agree: 44.2% • Neutral: 16% • Disagree: 3% • Strongly Disagree: 0.5% • Don’t Know/Not Sure: 2% Pew College Student Survey

9. OUR STUDENTS I Use The Internet Most Often To: • Communicate Socially: 42% • Engage In Work For Classes: 38% • Be Entertained: 10% • Communicate Professionally: 7% • Don’t Know/Not Sure: 2% Id.

10. WHO SHOULD TEACH LEGAL RESEARCH • Legal Writing Teachers Should Teach Legal Research As Well • If Possible, Team-Teach With Librarians To Avail Students Of Expertise • Vendors Should Have No Role In Primary Teaching Of Electronic Databases

11. WHEN SHOULD WE TEACH RESEARCH • If Possible, After Students Have Had Solid Grounding In Rule Derivation And Legal Rhetoric • If Possible, Research Is Best Taught As Complete Unit, Not Piecemeal • Book And Electronic Research Should Be Taught Simultaneously, Not Separately

12. WHERE SHOULD WE TEACH RESEARCH • If Possible, Best to Teach Research In The Library • Allows Immediate Access To Books • Makes Library Less Threatening To Students Unfamiliar With Book-Based Research

13. HOW SHOULD WE TEACH LEGAL RESEARCH • Integrated With Writing Assignments • Integrated With Doctrinal Classes • Using Exercises To Familiarize Students With Library • Using Self-Created, Not Published Exercises

14. WHAT SHOULD WE TEACH • Book-Based Legal Research • Lexis and Westlaw • Low Cost And No Cost Electronic Alternatives - Findlaw - Loislaw - Legal Information Institute - Hein Online • Introduction To Lawyering Culture

15. BAD EXPLANATIONS FOR BOOK-BASED RESEARCH • “I Know What’s Best For You.” • “I Had To Do It So You Have To Do It.” • “Books Are Better For Legal Research.” • “Book-Based Research Will Make Your Electronic Research More Efficient.”

16. EFFECTIVE EXPLANATIONS FOR BOOK-BASED RESEARCH • Emphasize Process Over Method • Stress Value Of Electronic Research In Certain Areas • Explain Why Electronic Research Can Cause Problems • Explain Why Lawyering Culture Is Still Uncertain About Electronic Research • Explain Professional Benefits To Being Effective Book Researchers

17. PROCESS OVER METHOD • Familiar Secondary Source To Primary Source Process • Possible To Accomplish Using Just Books Or Just Computer • Computer Searching Of Secondary Sources Not As Easy Using Computers? • Combination Of Book And Computer Research Is Probably Most Efficient Process

18. VALUE OF ELECTRONIC RESEARCH • Unparalleled In Some Areas Like Shepardizing • Document Retrieval Is Much Faster Than Books • Ability To Locate Specific Terms And Concepts In Long Opinions • Allows Research In Ways Previously Not Possible

19. PROBLEMS OF ELECTRONIC RESEARCH • Electronic Researcher Is Indexing Reporter Without Having Read Cases • Electronic Researcher Is Limited To Retrieval Of Entered Terms: Synonyms Only Searched If Entered • Electronic Research Minimizes Serendipity • Electronic Research Limited By Scope Of Database • Electronic Research Breeds Overconfidence

20. PROBLEMS OF ELECTRONIC RESEARCH In text retrieval such as that performed by lawyers in Lexis and Westlaw, “increased recall is gained only at the expense of a loss of precision, and vice versa.” Jon Bing, Performance of Legal Text Retrieval Systems: The Curse of Boole, 79 Law. Lbr. J. 187, 196 (1987), quoted in, Christopher G. Wren & Jill Robinson Wren, Using Computers in Legal Research: A Guide to Lexis and Westlaw (“Wren & Wren”) at 767 (1994).

21. PROBLEMS OF ELECTRONIC RESEARCH “[S]uppose a database of 1,000 documents contains 100 documents you would consider relevant to your research problem. If your search request retrieves 60 of these 100 relevant documents, the recall measurement for your request would be 60 percent. If your search request also retrieves 180 irrelevant documents along with the 60 relevant documents … the precision measurement for your search request would be 25 percent – that is, 60 relevant documents out of 240 retrieved documents. Thus your search request would have a relatively high level of recall (retrieving 6 out of every 10 potentially relevant documents) and a relatively low level of precision (with only one out of every four documents retrieved being relevant.)” Wren & Wren, at 769.

22. PROBLEMS OF ELECTRONIC RESEARCH • 1985 Study To Evaluate Success Of Research in 350,000 Page Database. • Researchers Studied Were Familiar With Contents Of Database. • Search Considered “Successful” When Subject Concluded 75% Of Relevant Documents Had Been Recovered.

23. PROBLEMS OF ELECTRONIC RESEARCH • Researchers Had High Level Of Precision (79 of every 100 documents retrieved were relevant) • But Only 20 Of Every 100 Relevant Documents Were Retrieved – 20% Instead Of The Perceived 75%. David C. Blair & M.E. Maron, An Evaluation of Retrieval Effectiveness for a Full-Text Document-Retrieval System, 20 Comm. Ass’n. Computing Machinery 289 (1985), quoted in, Wren & Wren, at 769.

24. PROBLEMS OF ELECTRONIC RESEARCH Information Retention • Link Rot • Information Culling • Depublished Opinions and Superseded Statutes

25. PROBLEMS OF ELECTRONIC RESEARCH Information Availability • Denial of Service Attacks • Internet Service Disruption • Expense

26. LAWYERING CULTURE Students More Willing To Learn Book Research If They Understand That Electronic Research Is Not Always Part Of The Lawyering Culture: • Some Lawyers Suspicious Of Results • Some Clients Won’t Pay For It • Some Law Offices Won’t Make It Available • Even If Available, Large Bill For Electronic Research Can Hurt Employment Chances

27. LAWYERING CULTURE • Introduction To Cost Of Legal Research Explains Premium Employers Place On Efficiency • Explains Pressures Under Which Law Firms, And The Lawyers In Them, Operate • Gives Students Perception Of How Their Work Might Be Evaluated • Helps Students To Take Legal Research Seriously

28. ECONOMICS OF LEGAL RESEARCH Value Of United States Legal Information Market: • In Excess Of $5 Billion Per Year • Growing At Annual Rate Of 5% Per Year JP Morgan Securities Ltd, Equities Research, US Legal Publishing Industry: A Growth Story?, 3 (2002).

29. ECONOMICS OF LEGAL RESEARCH Three Corporations Control 80% Of Market: • Thompson Corporation: 38% • Reed Elsevier: 27% • Wolters Kluwer: 15% Id.

30. ECONOMICS OF LEGAL RESEARCH Where Our Students Will Work: • Private Practice: 74% • Private Industry: 8% • State/Local Government: 5% • Retired/Inactive: 5% • Other: 5% • Federal Government: 3% Id.

31. ECONOMICS OF LEGAL RESEARCH

32. ACCOUNTING FOR THE COST OF LEGAL INFORMATION Cost Of Maintaining Physical Library: • Single-State Practice In Small State: $18,000 - $63,000 In Start-Up Costs and $30,000 In Supplementation Costs • Other Materials Such As Loose Leaf Services, Treatises, Bar Publications, And Books Will Increase Costs • Cost Of Physical Space To House Collection

33. ECONOMICS OF LEGAL RESEARCH Although Numbers Will Fluctuate In Different Parts Of Country And Depending On Firm Practice, Not Unreasonable To Assume Physical Library Represents $100,000 Per Year In Overhead Cost

34. ACCOUNTING FOR THE COST OF LEGAL INFORMATION Law Firms Recover Cost Of Legal Information In Two Ways: • Direct Charge for Service • Recovered Billing For Attorneys

35. ACCOUNTING FOR THE COST OF LEGAL INFORMATION • Library Expenses Are Overhead Costs Factored Into Billing Rates And Are Recovered As Part Of Monthly Billing Cycle • Electronic Database Expenses Typically Have Been Broken Out By Client And Were Billed As Separate Charges In Addition To Attorney Time

36. ACCOUNTING FOR THE COST OF LEGAL INFORMATION Treating Legal Research As Cost Item Can Cause Problems: “It is well settled that computer aided research, ‘like any other form of research, is a component of attorney’s fees and cannot be independently taxed as an item of costs.’” Ryther v. KARE II, 864 F.Supp. 1525, 1534 (D.Minn. 1994), quoting, Leftwich v. Harris-Stowe State College, 702 F.2d 686, 695 (8th Cir. 1983).

37. ACCOUNTING FOR THE COST OF LEGAL INFORMATION Other Courts Have Been More Sympathetic: In re Cedant Corp., Derivative Action Litigation, 232 F.Supp. 2d 327, 344 (D.N.J. 2002), Permits Recovery Of Computer Research As Element Of Costs.

38. ACCOUNTING FOR THE COST OF LEGAL INFORMATION Flat Rate Billing By Westlaw And Lexis Can Mask Hidden Dangers: • Flat Rates Can Encourage Unlimited Use • Westlaw And Lexis Still Track Use Closely • Flat Rate Renegotiated Fee Based On Past Usage

39. ACCOUNTING FOR THE COST OF LEGAL INFORMATION • Require Students To Maintain Timesheets • Introduces Students To Concept Of Keeping Track Of Time • Serves As Research Log • Gives You Early Warning Of Inefficient Research Habits • Can Be Used To Determine How Much Time Students Really Spend Working On Legal Research And Writing Assignments

40. CONCLUSION • Teaching Students About Problems With Electronic Research, Both Technical And Cultural, Can Explain Why Books Remain Viable Option • Teaching Process Rather Than Medium Promotes Efficient Research Skills • Explaining Professional Benefit To Being Effective Book Researcher Can Motivate Students To Overcome Mistrust Of Books