The announcement, applicable to England and Wales, of the alpha launch of Find Case Law, from the National Archives, is a significant step forward in giving greater access to case law and making judgments available freely for re-publication under a new copyright regime, the Open Justice Licence. For free access to cases from both Irish jurisdictions, Scotland, the European courts and the Commonwealth, the British and Irish Legal Information Institute (BAILII) remains a key source. Find Case Law is and will probably always be incomplete, requiring access to all the other available sources of primary legal materials, but that detracts little from the importance and value of the initiative.
Commercial law publishers might be dismayed at the prospect of further erosion of their paid subscription revenues from the provision of primary materials, but such changes have been and continue to be evolutionary, over a long period, with time to prepare and modify their propositions. It is unlikely, however, that their roles will disappear completely. They will continue to provide paid-for access to the complete, historical legacy of cases and other materials which more recent public sector initiatives cannot mine and, importantly, add substantial, relevant value, in terms of proficient commentary, electronic tools and links to other materials, both within and beyond a traditional framework of legal information.
However, nor can they be complacent about the future, in any sense dismissing open access initiatives and over-valuing the quality and trustworthiness of even the best of their offerings. They would be unwise to under-value the significance of “good enough”, as a standard to describe and measure the information needs of their customers, when choices are made between high charges and zero cost, and everything in-between. They see how, consistently, libraries of all kinds, for many years, have been disposing of their traditional printed collections of primary materials, offering them at no cost to anyone who is prepared to take them away; if they are not being used, they have no value, but rather carry a physical maintenance cost, perhaps mitigated by office décor appeal.
Particularly in the UK and similar jurisdictions, with their opportunities and constraints for law publishers and where split branches of the legal profession exist in various forms, the small and mid-markets, which can be low on expertise and specialisation, primarily geared to processing forms, standardised precedents and other paperwork, sometimes are of negligible interest to information providers. The latter’s focus is more on Magic and Silver Circle firms and on the specialist Bar, both predominantly London-based and, in the scheme of things, numerically small. Of course, much of this 80:20, Principle of Factor Sparsity reality applies throughout the world but is perhaps more pronounced in some Common Law jurisdictions. It is not to suggest that innovation and system-challenging initiatives are impossible. Indeed the impact of previously non-existent content and tools’ providers to challenge the existing market providers, an interesting and, seemingly successful example being By Lawyers, together with LEAP Legal Software, shows that right-sized customers can always be found to match what newer providers have to offer. This assumes that it is appropriate to requirements and of optimal quality and value. That business focuses on the provision of accurate and effective content and tools to support day-to-day processing of component elements of client representation. Its Australian roots probably work in its favour in the UK, as it was with CCH after it was launched there a long time ago, not from the USA but from Australia, eventually apparently achieving information publishing success, in profit terms, between around 2002 and 2009. Targeting the small and mid-market maybe allows it to find a niche that is different from, for example, Thomson Reuters’ Practical Law (PLC), RELX’s LexisPSL and suchlike.
Other factors that might diminish opportunities to allow established law content and tools’ suppliers to flourish might include the UK’s departure from the EU having been concluded, and the resulting lesser relevance of EU source materials, analysis and jurisprudence, as indeed in the case of Commonwealth markets, which are progressively drifting away from the wicked stepmother ship; maybe though, trans-national litigation and trade wars arising from Britain’s unilateral breaking of laws and international treaties will create opportunities. Academic and professional law studies, the more they travel in the direction of job training and away from analytical study, may equally contribute to a shift towards the practical and away from the theoretical.
Yet, these issues are neither binary in character nor simple. Law publishing industry veteran and innovator, Jason Wilson has been pondering on relevant matters as the case of ROSS v. Thomson Reuters progresses. He fears “a potential chilling effect for companies looking to build ‘clean’ data from public resources” and the notion of “building a company that is first to market using machine learning/AI and data”. He has concerns that “government data, no matter where it comes from, is always ‘dirty’ and there is a significant cost to clean it and make it useable. And by ‘useable’ I mean understandable by machines. And we haven’t even gotten to the part where courts are embedding emojis as parts of opinions, which presents new problems. This case could be a bellwether for the future of public data”.
It is easy, but, I think, unwise, to disregard or underplay all that is entailed, not least in financial terms, in adding value to meet the need of markets, this being a fundamental role of commercial law publishers. Indeed, it might be considered somewhat delusional to imagine that legal content that is of value for strategic and litigation supporting/avoiding purposes, can be provided at little or no cost. Jason Wilson is correct to remind potential new market entrants that “there is a real monetary cost for creating the data you rely on”. Combine that with all the other compilation, added-value quality and content expertise, cross-border information and that derived from other business and professional disciplines, in order to help guide clients through the bigger picture, and the differences between active and passive data can be seen. This would include the many and frequent combinations between law publishers and legal technology businesses to add value in consequence of their co-operation, a recent one in the USA being between James Publishing and Casetext, specifically to expand the latter’s secondary sources.
My experience tells me that, while not necessarily agreeing with the defeated former Australian Prime Minister’s opinions and certainly not the more sinister and nasty ones expressed by the, not yet, defeated English prime minister, lawyers in practice, for the most part, are no smarter, insightful or capable of great thoughts than are other intelligent and well-educated people. It would, in my opinion, be naïve to assume that they can do all the deep thinking and jurisprudential analysis needed to optimise their value to clients without help from the genuinely clever and experienced ones, namely, the distinguished authors. Hugh Logue, of Outsell, reports research findings which indicate that legal research customers are “…facing challenges with little support. As inflation and other pressures drive costs out of control, serving customers’ needs in this market will require a strategy rethink”. His research findings also “show that lawyers’ research needs are simple: they value the same content, data, and features they’ve used for decades. But as data and technology become commoditized, providers face the challenge of adding value through additional features while not alienating their customers”. Further, his research suggests that “the growth of the CLM [contract lifecycle management] market will reach its pinnacle when customers demand integrated content, data, and workflow. The battle will be whether customers’ needs are met by private equity-backed software companies adding content and data or legal information providers integrating CLM into their solutions”. The indicators are, apparently, that “[t]he Legal & Regulatory Solutions market bounced back in 2021 with its strongest yearly growth in over a decade, but the market was coming off a lower base. Now, with strong economic headwinds, providers need to strategically align themselves to high-growth areas targeting adjacent professions”. A split infinitive aside, the research and analysis seem to me to be of quality and insight, but I detect little that appears new or surprising here. Maybe the issue is of conservatism and resulting glacially slow progress, in future needs being identified, agreed and delivered.
If much of what is described is indeed the case, legal research customers should be careful not to forget the value of their preferred law publishers, so long as they are capable of momentarily ignoring their dark side, such as Lexis Nexis’ apparent complicity, as some see it, in enabling the US immigration authorities to destroy, for profit, the lives of countless vulnerable and impoverished people. My own personal favourite large law publisher, even allowing for it being owned by Thomson Reuters, is Sweet and Maxwell. Due, in 2024, to celebrate 225 years since its establishment, its web site shows the extent to which it remains a publisher of extremely traditional legal information. Ostensibly distinguished from Westlaw, details about its law books predominate, with pointers to “Legal Solutions” being something of a subset. In truth, Lexis Nexis’ UK site has many similar characteristics, though, as with Wolters Kluwer, Lexis Nexis “has transitioned away from its heritage as a legal publishing house”. At the same time, according to LawSite’s Bob Ambrogi, often, many of those whose interest is in legal technology do not adequately have law librarians as technology customers in their sights, even though they are focused in producing many tools which are new, innovative and useful. Perhaps, schizophrenia plays to the market as it is in current, confused reality.