I see a change coming on how Alberta Courts deal with costs for computerized legal research. Mr. Justice MacLeod in Aram Systems Ltd. v. NovAtel Inc., 2010 ABQB 152, wrote:
[23] With great respect to those decisions made at an earlier time, I think that the view of computerized legal research as a mere alternative is no longer consonant with the reality of current legal practice. Such research is now expected of counsel, both by their clients, who look to counsel to put forth the best possible case, and by the courts, who rely upon counsel to present the most relevant authorities. Indeed, it might be argued that a lawyer who chooses to forgo computerized legal research is negligent in doing so. This is particularly so given that many law firms and indeed governments are now cancelling hard copy subscriptions to legal resources in favour of the electronic versions. The practice of law has evolved to the point where computerized legal research is no longer a matter of choice.
[24] In response to Justice Watson’s reference to Bob Cratchit’s coal, I would point out that the disbursement claimed in these cases is for access to the legal databases and is based upon the time spent doing research for the particular client on the particular matter. There is no suggestion that the disbursement is meant to reimburse the law firm for the cost of computers as capital assets. In my view, disbursements for electronic legal research are similar to disbursements for photocopying; it is the copies, not the copiers, that are being paid for.
[25] Nevertheless, I am bound by the weight of authority and must therefore refuse to allow the disbursement. Perhaps the time has come for our Court of Appeal to revisit this issue, but in light of the existing authority, I am not in a position to do so.
Emphasis mine.
This is more of a handkerchief floating to earth than a gauntlet being dropped, but still, I see this as a call to action for modernizing how disbursement costs for computer assisted legal research are dealt with. I am certain that if legal research is performed for a matter today, a computerized gathering method is used for some part of that task. I feel confident suggesting that there is a fee paid to someone for a significant portion of the information required.
This issue of cost recovery for has come up on Slaw in the past. See Recovery of charges for searches on online databases redux and Judges and electronic searches and the many comments posted. While these posts deal with disbursements allowed by a taxing officer, similarities exist with reasons for costs in the cause.
Any suggestions from readers on where this issue is headed in 2010?
I find it a little amusing that the issue of disbursements for licensed online research has not been settled, as free sources become increasingly available and reliable.
I realize that there can't help but be a bit of a lag between "arrival in the marketplace" and "judicial acceptance", but 30 years+ is really pushing it! Especially since the Canadian Judicial Council opened the door to accepting citations to online sources nearly 20 years ago.
The recovery of fees for on-line databases should only be allowed if the lawyer can show that he or she could not have found the relevant cases on CanLII. I am forever trying to get our students and young lawyers to go to CanLII first. The ability to wander, free of concerns for on-line charges, is in my opinion a huge advantage in doing thorough research.
I'm just curious to know if there are any figures comparing the costs of research done using only tradition methods or the "paper chase" and research done using electronic or online methods. If anyone can provide these comparative figures I would find it very useful.
Why should it be possible to charge for access to online information at all? It is no different from making a purchase of a book for a library or paying for a subscription to a looseleaf service.
Commercial access to online information is almost invariably by an annual subscription, just like a subscription to a law report series or a looseleaf service. The information provided by the commercial publishers regarding usage for the purpose of charge backs to clients is an artificial construct, developed to reinforce the idea that online information is analogous to photocopies and all of the other petty items which lawyers now charge their clients.
Payment for research time is another matter entirely. It shouldn't matter whether that time be spent researching print or online.
There are a few recent court decisions where the court is wrestling with the fact that most law firms have (or are required by the vendors to have) flat fee contracts to access the online research databases.
Despite that, there are also recent decisions where courts do allow recovery of online legal research costs (by the winning party against the losing party or by a law firm against their client) where the research was necessary and the cost reasonable and the search done for that specific client on a specific issue.
My comments on the comments so far:
1) I am a huge fan of CanLII and their constant improvements; however, it cannot yet be the "sole" source of legal research.
2) If it is acceptable to pass on to the client "pay as you go" charges, I don't see the difference made by a flat rate contract between the law firm and the vendor. In fact, I don't appear to even have a choice to make a "pay as you go" arrangement and if I did not do research on these online databases, I would risk being negligent or the client would be paying a huge amount more for the time spent to inefficiently try to replicate the online research using only print resources.
3) My purchase of Walker's treatise on conflict of laws is general overhead since I am using it for a variety of reasons. However, I think that my keyword search on Walker's book in Quicklaw on a specific issue for a specific client is different, especially where that research will benefit only that particular client.
4) I think most clients, if given the following choice, would agree to pay for online legal research costs (choice #2 below):
Choice #1: There are specific issues we need to research for your issue/matter. We will send students to a print library to scour through the print materials. This may take 100's of hours if we are to be thorough (and we would risk missing some issues).
choice #2: We can run specific searches on comprehensive online databases. The time to run such searches may be 1 or 2 hours of our time plus the value of the notional charges assigned to those searches and downloads.
Choice #3: You can conduct your own research, and if you want to do the research online, you can arrange for your own subscription (and training) and pay the online costs yourself.
5) I believe there may be certain other online services, perhaps in real estate where you need to subscribe in order to even get access to the online records, where each "search" or "download" then also generates a charge. I assume most would agree that the client should pay the cost of the documents obtained for their benefit. Is that situation drastically different?
However, I am a realist and realize that recovery of online charges will be increasingly difficult to achieve.
Recovery of online charges for case research originated in the pre-subscription era when payment for access to Quicklaw was on a per hour basis. Online was a novelty and seemed to some to be an exception to the general rule that payment for acquiring texts books or law reports for the library could not be charged to clients.
At the time, this practice effectively encouraged and subsidized the use of online legal research at the expense of print. As a print publisher, I objected at the time, but without effect. Until cost recovery became the order of the day, many lawyers and law firms believed that it was inappropriate to charge for acquiring research materials of any kind, be it print or online. Lawyers were expected to know the law as opposed to being paid to find out what the law is.
The confused scenario noted by Shaunna and Ted shows clearly that the topic needs to be examined at the level of first principles by a competent authority and that a general rule be developed and implemented across the profession.
Is this something that perhaps the Minister of Consumer Services should be looking into?