Retro Case Builds – Does Anyone Really Need Them?

The debate in legal publishing circles continues with regard to retro case law builds. Does anyone really need them? If so, which ones and why? Do any of retro builds in the planning or development stages have any real value to the legal researcher?

Unreported court cases that pre-date 1970. Boxes and boxes of older full text court cases that were not reported in print law report series still haunt some court houses and some legal publishers. What should be done with them? Tens of thousands of these cases exist in hardcopy and rest heavy on the consciences of those who are storing them for safekeeping. To trash them seems unconscionable, but storing them forever is also pointless. Shocking though it may seem, the trash may be the best option.

Decisions of administrative tribunals. Administrative tribunals are now pushing to have their decisions included in the major online services even though the tribunals offer free access to the same decisions on their own websites. In some instances, the tribunals are seeking to barter their content for free access for their staff to other databases available on the commercial online services. In other instances, the tribunals are simply looking for wider distribution of their decisions.

From the beginning of the online era, the assumption has been that every unreported case has value and should be mounted online. Electronic access to every case was the guiding principle for online case research adopted by LexisNexis and by Quicklaw and copied by almost everyone else who has ventured into online legal publishing. Simply making a case available online was deemed to offer sufficient added value to justify the expense. This is clearly an idea that has run its course.

Comprehensive prospective builds make business sense

Mounting every court case as soon as it is issued appears to make the most sense from a commercial perspective. I have seen business cases that show that it is cheaper and more efficient to mount every case using automated processes based offshore than it is to select and process only cases that contain substantive information of use to legal researchers and practitioners.

While the business cases may be suspect, given that they are generally developed to justify a pre-determined outcome, processing every court case has become the norm. Personally, I believe that the online service which best separates the wheat from the chaff will ultimately prevail in the market place. As the number of cases grows larger and more cumbersome every year, the competitive advantages of the selective approach will become clear.

A legal research database is not an archive

Retro builds are a different matter. Retro builds of court cases generally require the conversion from hard copy to a digital format. In this instance, a business case would show that it does not make sense to process every case and that some form of intelligent case selection is required to manage costs.

Unreported court cases. With retro builds of unreported cases, it make sense to ask if there is any benefit to anyone to gather every old unreported case from the basements and attics of courtrooms and mount them online? In their own day, these cases were not deemed to be worth reporting. Is it really likely that any of them would be of any value to a legal researcher today?

Cases reported in print. Retro builds of reported cases are another matter. As yet, no online service can claim that they have every case reported in print. In my view, every major online service should include all of the cases reported in print law reports, including cases that predate 1970. It is these cases that have been recognized by the fact of being published in print law reports that they address a legal issue or fact situation in a meaningful way.

If every case reported in a print law report were included in every online service, product differentiation and competitive advantage would then shift where it belongs, i.e., to the quality of the value added content and links to secondary content. Only specious arguments regarding unsubstantiated copyright claims have prevented this from happening to date but having every online service include every case reported in print is an idea whose time has come.

By contrast, collecting old unreported court cases and including them in legal research databases would serve no useful purpose. The proper home for these cases is the public archives. Interestingly enough, it is the public archives that has studiously avoided gathering this material, preferring instead to enact regulations that at some point will require the commercial publishers to deposit an electronic copy of their legal research databases in the archives’ collection. Court houses and publishers with unreported cases should offer their old cases to the public archives and end the debate as to what should be done with these cases.

At least add some real value to the content

The current wave of retro builds consists primarily of the decisions of administrative tribunals. Quicklaw and Soquij are the major sources of the decisions of administrative tribunals online, but competing services have announced that more builds are pending. Unlike court decisions, tribunal decisions carry very little weight outside the tribunal itself. In an increasing number of instances, the tribunals offer free access to their decisions on their own websites. Apart from labour arbitration cases and securities commission decisions, it is questionable as to whether there is there any need to duplicate this effort and offer the same content in the major online services.

Do any of retro builds in the planning or development stages have any real value to the legal researcher? Before a decision is made to remount any database of administrative decisions on a major online service, an assessment should be made of the extent to which doing so adds value over and above the content already available on the tribunal’s own website.

The traditional value added content provided by the major online services includes such things as basic editing – checking for spelling errors, ensuring the accurate reproduction of the judgment or decision, and the checking case and statute citations to ensure completeness and adding correlative or parallel citations. Overlaying the basic editing are enhancements such as case digests and a key word classification system. Several administrative tribunals already include key words and case digests with their decisions when they are released to the public. It should be possible to work with the administrative tribunals to deliver case digests with every decision of an administrative tribunal.

Some general online services automatically include limited value added features such as inclusion of references in a case citator and/or a statute citator. At least one service has a process for generating key words from a full text judgment. This better than nothing but no substitute for case digests and a key word classification system.

I would add the scope of the database to the list of potential value added features. Many databases of administrative tribunal decisions have arbitrary start dates that result in the omitting of key decisions in the area regulated by the administrative tribunal. At the very least, these key decisions should be identified and added to the database.

The bloom is off the rose

Every decision to build a retro database is a decision to commit increasingly scarce resources to one project in preference to another one. In online legal publishing, the bloom is off the rose. Costs are rising and online revenue is flat at best with no prospect of change in the foreseeable future. For these reasons, commercial legal publishers have become reluctant to invest in major new projects that add significant value to content. Instead, they prefer to tinker with technology or add data builds of low cost and value, all the while touting minor enhancements to their online services as if they were major innovations.

Data builds of unreported court cases and the decisions of administrative tribunals with little or no value added content no longer meet current needs. The bar has been raised. To build them because they are comparatively cheap and easy just doesn’t make sense. The question that needs to be answered is whether any of retro builds in the planning or development stages add any real value to what is already available to the legal researcher? If the answer is no, then dump them.

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Comments

  1. To trash them seems unconscionable, but storing them forever is also pointless. Shocking though it may seem, the trash may be the best option.

    It would be unconscionable to trash them.

    By contrast, collecting old unreported court cases and including them in legal research databases would serve no useful purpose. The proper home for these cases is the public archives. Interestingly enough, it is the public archives that has studiously avoided gathering this material, preferring instead to enact regulations that at some point will require the commercial publishers to deposit an electronic copy of their legal research databases in the archives’ collection. Court houses and publishers with unreported cases should offer their old cases to the public archives and end the debate as to what should be done with these cases.

    This is better.Just this last weekend, I attended Norfolklore, and bought a cd-rom from the Mayholme Foundation:
    Early Niagara district court records, 1787-1841 : a source book with nominal index, ed. Brian K. Narhi (St. Catharines, Ont. : Midnight Sun Press, 2006) [Amicus No. 32296207]. This is a transcription of the same records, thought lost for years, that were used by David Murray in Colonial justice : justice, morality and crime in the Niagara district, 1791-1849 (Toronto : Published for the Osgoode Society for Canadian Legal History by University of Toronto Press, 2002) [Amicus No. 27216205]. If the records are kept, some scholar will eventually put them to good use, and some enthusiastic antiquarian will probably even digitize them.If the commercial publishers can’t see the profit in doing digitizing them, that’s fine, but trashing the records is not the alternative.

  2. Retrospective data builds aren’t just about including old content. Older decisions (should) have precedential value, regardless of whether they were reported. Prof. David Cleveland recently tackled this issue of unpublished decisions in the U.S.: Overturning the Last Stone: The Final Step in Returning Precedential Status to All Opinions. Even with little “value add” from the publisher, their inclusion can help a researcher get a richer perspective on a legal issue. Without access, it’s hard to know whether a novel legal argument is novel or was just unreported.

    Perhaps the publishers should pool funds and create a joint electronic copy of these reported and unreported decisions. Since case law is a commodity, if they all had it, the competitive advantage shifts to keeping the publisher’s subscribers within the publisher’s resources. If a publisher opts out, the competitor with the deeper content can argue that non-subscribers could be missing out. Retro projects can yield competitive advantage until your competitors have the same content you do.