Show Me the Money – a Reply

 I thoroughly enjoyed Susan Munro’s recent Slaw column “Show me the Money” in which she forcefully and unabashedly made the case for the value of high-quality legal editorial work. She stands on firm ground when in defending the professional standards of paid editors she argues that “when the job is done properly, enormous value is added”. To this I would add that in such circumstances, professionals are very happy to pay for the result. As Susan notes, unquestioned quality permits reliance, efficiency and cost savings to lawyer and client.

But she misses the point.

Her article was a response to recent posts on Slaw and elsewhere, from authors with long histories in legal publishing and legal scholarship who had written on the subject of the growing scope of “free and open”. Those articles discuss, among other things, the public benefit of free and open sources, the increasing quality of these sources, and the opportunity for growth in the face of uneven quality and value from some commercial sources. In that context, the benefits that flow from the best practices of the best providers are not the counter-argument or even immediately relevant because this is a demand-driven reality.

“Free” and paid services exist side-by-side in many markets and in nearly every conceivable digital information market. The better the free service, the more the paid service needs to do to differentiate and demonstrate value. Complacency, even if beginning from a position of high quality, is not an option for paid services. The distance between a free service that is “good enough” and one that is a direct and acceptable replacement for a paid service is not very far. In any event, it would be wrong to conflate “free” with an assumption of lower quality. On this point, consider the “free” Wrongful Dismissal and Employment Law e-text authored and updated by Lancaster House that has, since it was placed on CanLII in May of 2012, consistently attracted thousands of page views each month.

With respect to legal information resources, best practices often call for relying on multiple highly similar, but overlapping resources. As law firms, law societies or anyone else currently managing a library budget knows, you can’t always get what you want. The cost/benefit equation dictates what resources will be dropped. The day we announced the availability of the Lancaster House text on CanLII, I was approached by a law librarian who advised that she now no longer needed to buy a third employment text for her library. I’m curious how many other purchasing decisions were changed that day or since? How many others did not buy the third, or second or even first book because this resource was out there?

Even if you accept that “free” has a place and an opportunity, Susan asked a very fair question – where will the money to develop these sources come from? Her column concludes with the following paragraph:

As we all know, the Federation of Law Societies supports CanLII. Other possible funders include for an open secondary source project may include the law societies, law foundations, or even the government. Do we believe that any of these bodies is willing to support development and maintenance of secondary legal content?

My answer?

Yes, yes I do.

The groups she describes are among the biggest spenders on legal information services. In light of their successful investment in CanLII why wouldn’t they consider moving into secondary legal content? It almost seems foolish not to.

Every dollar CanLII received in 2013 from law societies supported nearly 40 minutes of legal research. This strikes me as good value. Is it really a stretch to believe that the law societies might be interested in funding development of secondary sources if the value-for-investment equation?

Let’s not forget the profession, the universities and even the commercial publishers.

Their contribution may not come in the form of money, but if the project and circumstances were right, they are very well suited to provide the intelligence and analysis behind both creation and editorial. Many provide it now in a volunteer capacity, for very small honoraria, and even for business development purposes. Given the opportunity and, ultimately, a platform that assures the creators of professional credibility, visibility and influence on par with other publication options, it’s highly probable that willing and competent contributors will stand at the ready.

CanLII is taking the first steps in drawing out the goodwill of the legal community towards this end. Within a couple short weeks, we will roll-out “CanLII Connects” – a website that harnesses case digests and commentary from those with competency to provide legal analysis. Currently in private beta testing, this site will launch with nearly 30,000 documents contributed from national law firms, major regional firms, academics, leading practitioners and legal bloggers, research specialists, commercial publishers and law societies. It may not immediately replace the third or second subscription to a commercial digest service or database, but give it time. And then imagine what could come next.

Recall that the main CanLII site began with just 20,000 documents and has since grown to 1.3 million. It went from a good idea to an indispensable tool over the course of a few years and is now the first and often only stop for most lawyers searching primary law. Looking at the more than nine million visitors in 2013, it’s clear that the law society investments that make CanLII possible routinely save the profession (including thousands of public sector lawyers and justice officials) millions of dollars that would otherwise be spent searching commercial services and thereby inflating the cost of legal services for everybody. As a public site, this law society investment in the most comprehensive free-to-use legal information resource in Canada concurrently serves up perhaps the most significant contribution to access to justice ever made by the legal profession.

Why stop there?

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Comments

  1. Donald Mitchell

    “Recall that the main CanLII site began with just 20,000 documents and has since grown to 1.3 million.”

    Quite a meteoric rise in the number of documents no doubt, but as nearly all of these documents are primary law, it cost CanLII $0 to ask for governments to produce new legislation and $0 to ask the courts to produce written judgments. These are quite simply the products of their work. Work that they are otherwise paid to do.

    Anyway…this is new territory for CanLII, and I wish them luck in this exciting venture, hoping they find like minded individuals who agree that it is “wrong to conflate ‘free’ with an assumption of lower quality,” and whom will be willing to provide their intelligence and analysis at bargain level pricing. Moreover, I hope this does not turn out to be nothing more than a”freemium” pricing model.

  2. Naturally, I’m pleased to hear about the development of CanLII Connect. But I feel even more buoyed by this idea

    The better the free service, the more the paid service needs to do to differentiate and demonstrate value. Complacency, even if beginning from a position of high quality, is not an option for paid services.

    As a courthouse librarian, I witness daily the difficulty that people have with the interfaces of paid electronic products. If subscription-based services are looking for a place to start differentiating themselves, look to your user experience. Content doesn’t matter much if no one can figure out how to find it.

  3. I use CanLii and think it’s a great service. However, I read this post and what I find troubling is the use of the term “free” and the statement “millions of dollars that would otherwise be spent searching commercial services and thereby inflating the cost of legal services for everybody”. Yes, the service unlike commercial services can be accessed without “direct” payment, meaning that, whether as a tax payer or a legal professional who pays fees to the law societies everyone is paying for the service in some form.

    Second, I assume that at one point or the other combined with CanLii the user, particularly the legal professional, refers to a commercial service to verify whatever information they may be searching for diligence purposes (good to look at more than one source). This is not to question the quality of CanLii. My point is, the legal professional particularly, is paying fees to the law society – fees which may be raised to support further CanLii investments and innovations. So, is it accurate to say that the cost of legal services are or will be reduced or will the raised fees be passed on to the clients?

  4. Thank you Donald, Kat and Verna for your comments.

    “Free” is a tricky word that can trip us up regardless of attempts to provide proper context.

    Take for example, Donald’s comment that CanLII pays zero dollars for courts to write judgments and legislators to pass law. A true statement, just as it is true to state that it costs CanLII zero dollars for parties to litigate and politicians and bureaucrats to draft. And even those most (but sadly not all) of these law makers authorize reproduction of their output without payment of fee or royalty, there is a very real expense associated with acquiring and publishing this information.

    This leads into the distinction of free to create and free to use. I hope I’ve not left the impression with anyone that CanLII’s primary collection was free to create. Through my own words and through the quoted text I’ve highlighted law society investment and lawyer funding in noting that CanLII is a product paid for by the legal profession. That part is not, nor is it claimed to be free. But at an average contribution of less than $36 per full-time lawyer (and Quebec Notary) across the country by way of their law society dues – it’s awfully close. See this piece for more background.

    Now, let’s talk about value and the claim of millions saved.

    I’ve noted that in 2013, $1 of investment in CanLII permitted 40 minutes of legal research. First, ask yourself how many documents you can search and read in 40 minutes. Now ask yourself how much it would cost on a commercial legal service to carry out that many searches and download that many documents. It’s more than a dollar, right? Maybe even more than a few dollars. If you don’t have an all-you-can-use subscription it’s easy to imagine a higher number still. Finally, compare your options when in private practice on how to carry out primary law research. If you are using CanLII, there is nothing beyond your time to bill back to the client, but when you are paying directly for your research service, that cost will either be absorb by the firm, rolled into the lawyer’s billing rate or charged directly to the client. Government and large firm CanLII usage are extremely high and it is common practice for researchers in those places to operate under instructions to carry out their research on CanLII as far as possible before completing the effort with a commercial service.

    If there were no CanLII, doesn’t it necessarily follow that higher and direct costs would appear elsewhere in the system?

    Finally, I read Verna’s final comment as implying that even free-to-use claims and the cost savings that follow may be illusory, or at least much lower if, as she assumes:

    that at one point or the other combined with CanLii the user, particularly the legal professional, refers to a commercial service to verify whatever information they may be searching for diligence purposes.

    “”

    If it were true that use of commercial services were the norm across the profession, then perhaps the magnitude of the claimed savings to the system could be lowered a peg. But here is the thing…

    In our 2012 survey of Canadian lawyers and Quebec Notaries (available here), a survey that drew nearly 4,300 responses from across the country, we learned the following:

    – 89% had used CanLII in the previous 12 months
    – 42% had used “Commercial service 1″in that period
    – 37% had used “Commercial service 2″ in that period
    – 45% reported an increase in CanLII use relative to the commercial services and only 3% had reported a decrease in CanLII use in favour of the other services.

    In 2012, CanLII received around 7.84 million visits and, as noted in the main post, received over 9 million in 2013.

    All things considered, I remain quite confident with my contention that the legal profession’s investment in CanLII has delivered millions in savings back to the system.

  5. These survey results are interesting. I wonder if the use of LPOs is factoring into any of this.

  6. Colin, I remain quite confident with your contention about the millions in savings too.
    It’s time to demystify pricey commercial resources.
    I can attest to your comment about the probability that “competent contributors” will support “a platform that assures the creators of professional credibility, visibility and influence on par with other publication options.”
    What drives legal scholarship, peer-to-peer CLE training, and CLE authorship generally in the legal sector? It’s not scads of cash… it’s professionalism, a public service ethic, collegiality and a small measure of prestige if you’re the expert others turn to.
    I manage the contributions of dozens of lawyers and even a few judges for a very well trafficked family law resource on Clicklaw Wikibooks. JP Boyd started seeded the content, and others are now continuing to work on it. We are not paying the editors.
    By the way, I’d love to catch a look at this new resource!

  7. CanLII Connects is now live http://blog.canliiconnects.org/

  8. CanLII can have little impact on the most serious problem now facing the legal profession and law societies in Canada & the U.S.–the majority of the population cannot obtain legal services at reasonable cost. CanLII’s materials are too limited, and it provides no legal opinion services for lawyers. Obviously it was designed to perpetuate the existing method of delivering legal services by making it more conveniently used–the “handcraftsman’s method,” instead of a “support services method” of delivering legal services as does LAO LAW (the centralized legal research unit at Legal Aid Ontario (LAO)). But, with its limited materials, CanLII does a good job.
    But, if CanLII could provide the services that LAO LAW does, nationally, it would have a substantial impact on the problem of unaffordable legal services, if not solve it. LAO LAW provides a wide spectrum of materials and services to Ontario lawyers in private practice who do legal aid cases. LAO LAW has 35 years of know-how in the technology centralized legal research services, popularity, success, and saving LAO $millions.
    CanLII should be enabled to do what LAO LAW does, by adding to it all that LAO LAW has and provides, including its database (paid-for by taxpayers). Then CanLII would have a substantial impact on that most serious of all problems–a problem that threatens government intervention to again make legal services affordable.
    A democracy and the rule of law cannot be left without lawyers, lawyers who should therefore fear government intervention that reduces law societies’ power to regulate the legal profession, because the legal profession has priced itself beyond the majority of the population. It needs a different method of delivering legal services. CanLII could provide it, instead of perpetuating a method that can never be improved sufficiently to solve the problem. Improvements will be like adding a motor to a bicycle, while the capacity, speed, and cost-efficiency of a motor vehicle are needed to solve the problem.
    CanLII will survive as the legal profession shrinks. But, as the CBA has forecast, over the next decade very likely the middle-sized law office will disappear. Therefore, so will all smaller law offices. Then, CanLII will be serving a legal profession, the vast majority of which will be employees, of either, commercial organizations, or of law firms owned by investors. Either way, lawyers will earn far less money.
    But the future doesn’t have to be that way if CanLII could do for every lawyer in Canada, what LAO LAW does for Ontario’s legal aid lawyers.
    Until then, this statement made by Colin Lachance about CanLII is not yet true: “As a public site, …[it] serves up perhaps the most significant contribution to access to justice ever made by the legal profession.” LAO LAW does; not CanLII. So let’s make it true, and in that way forestall government intervention. CanLII improved to be a sophisticated national support service, as is LAO LAW in Ontario, would be a law society solution, which is the best solution. Make it happen, or, don’t recommend to your grandchildren that they become lawyers.– Ken Chasse (“Chase”), member, LSUC, & LSBC.

  9. Because of the ever-increasing volume of laws and their complexity, people need lawyers more than ever before. Therefore, if legal services were affordable, lawyers would have more work than they could handle, and the profession would be expanding instead of contracting, and law schools would not have to be decreasing their student bodies. Therefore, CanLII is needed to make legal services affordable again. It can do it, if it becomes an effective support service for making legal services again affordable.

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