Berring, Free Legal Information, and Making Good Choices

The Legal Current, a blog published by Thomson Reuters, recently posted comments by Bob Berring on free legal information. Professor Berring expressed scepticism about the future of free tools for legal research, and described why in his view the structured and edited information in commercial tools makes them preferable for legal research.

Are commercial services necessarily more stable?

Daniel Poulin of LexUM has addressed Berring’s arguments in his recent post on SLAW, from the perspective of a publisher of free legal information. I echo his comment that commercial services are not necessarily more stable than government sources of legal information. Examples abound of collections suddenly disappearing from commercial services. In the Canadian context, the disappearance over time of the Maritime Law Book, Canada Law Book and Irwin Law collections from Quicklaw illustrates the shifting sands of legal publishing. An example in the US context is the removal of ALR Annotations from LexisNexis. Others will remember the temporary removal from LexisNexis of the ICLR Law Reports.

Statistics on free v. commercial from the US

Recent surveys show that most of the North American legal profession is using these free tools. The American Bar Association’s 2008 Legal Technology Survey Report showed for the first time that the number of lawyers performing free online legal research (89%) was greater than the number using commercial services (87%). The 2009 ABA survey reports that 91% are using free online resources, as compared to 88% using fee-based online resources. The 2008 survey also revealed an increase in private sector lawyers performing online legal research, from 79% in 2003 to 96% in 2008.

The 2009 ABA survey asked lawyers about their satisfaction level with free online services as compared to fee-based online services in the areas of user-friendliness, authoritativeness, advanced search options, searching multiple databases simultaneously, and depth of coverage. Not surprisingly, the commercial services ranked much higher. However, only 8.7% of respondents were very satisfied with the cost of the fee-based services.

All free services are not equal

Free legal research tools cannot be lumped into one homogeneous group. Government sites with poor search engines, limited content and no value-added features comprise only one segment of the free legal information world. In addition to the free services are the “low-cost” services, and Bar Association funded access to tools such as Fastcase. Each has a role to play in a cost-effective research strategy. For example, a large national US law firm has issued guidelines requiring the use of Loislaw before turning to Lexis and Westlaw.

Query whether the availability of these free and low-cost online tools has increased the number of lawyers going online to research the law. Many lawyers cannot afford commercial services, and many other lawyers don’t subscribe to commercial services because they don’t do much research. Others limit their use of commercial services because of the cost. Free resources can improve the standard of practice by increasing access to legal information.

CanLII’s place in the legal research world

CanLII is an example of the tremendous potential of free legal information. It is freely available to anyone, although it is funded by the Canadian legal professions in an annual levy of approximately $30 per member.

CanLII publishes cases and legislation from all Canadian jurisdictions, as well as several administrative tribunals. Value-added features on CanLII include an excellent search engine; ranking results by date, relevance or citation frequency; searching by keyword, name or citation; refinement by date, court level, jurisdiction or keyword; ability to customize which databases are searched; linking between documents; parallel citations; PDF versions of cases; case history and case citation reports; RSS feeds for new cases and legislative changes; weekly updates of legislative databases from government sites; side-by-side comparisons of legislative versions; and an automated linking tool.

A 2008 survey of Canadian lawyers ranked CanLII as the most frequently used electronic legal resource, and ranked it first for user-friendliness. 43% of lawyers using CanLII stated that they could accomplish 50% or more of their legal research using CanLII.

Making good choices

Lawyers using the free services recognize that their research needs to be augmented (and more preferably started) with commentary, and where necessary supplemented using commercial online tools. Even research using the commercial online tools generally needs to be supplemented with print commentary. All commercial services are not equal either, which often comes as a shock to users who assume that each “has everything”.

The free services are one tool of many for lawyers to use. In making good choices about which tools to use, the lawyer needs to consider comprehensiveness, accuracy, currency, quality of content, ease of use and cost. The more transparent that publishers of free and commercial tools are about the contents and currency of their collections, the easier it will be for lawyers to make good choices.