By Kerry L. Adams

This article is dedicated to the more experienced members of our Bar, who may know everything about finding legal precedent in books but relatively little about computerized research. It would not be surprising if some of the more seasoned practitioners among us found online resources intimidating. Those of us who learned to research when LEXIS® and Westlaw® were young could become successful brief writers using a short list of reference resources. A lawyer daring to conduct legal research in the new millennium, by contrast, confronts an array of computerized options unimagined when we mastered skills "by the book" in a physical library.

After twenty-five years of filing trial, appellate, and Supreme Court briefs in government service and private practice, this author finds the writing process relatively comfortable and simple, but the research process increasingly daunting and complex. The first blank page of a new brief causes little anxiety, once research is complete and organized, when you know the drill. Regardless of the advocacy challenges in a given case, the writing steps trace familiar ground: Start by distilling your position down to the essence in an Introduction that explains how application of law to key facts leads to your client’s victory, notwithstanding any legal and factual obstacles along the way. Adhere to that focus in describing the record for the Statement of Facts and analyzing legal issues for the Argument. Use topic and summary sentences in each paragraph, and sprinkle liberally with transitions. Draft a pithy variation of the introductory theme for the Conclusion, and you have a brief.

If only it were so easy to mark the trail for legal researchers. Rather than follow a familiar well-trod path to uncover relevant precedent, however, a brief writer must draw a customized research map for each research project, often charting new territory along the way. Internet gurus are continually re-engineering our methodology by opening new frontiers that researchers must explore and conquer with unfamiliar high-tech tools. Even experienced brief writers are challenged by a constantly evolving landscape that becomes more treacherous with the passage of time.

No matter how unexpected and even unwelcome to the legal writer, however, computerized research has become a tool of our trade. Ignore the Internet research revolution at your peril. Rely on recent law graduates to consult all relevant online material only to the extent that you trust their judgment to make wise choices among traditional library resources. Be equipped to supervise online research as competently as you do traditional steps in the legal-writing process. The lawyer who signs a client memo, or whose name appears first on a brief, may not escape responsibility for ensuring use of the best resources available, from both the physical and virtual library.

The following tips and checklist describe essential computer tools that all legal researchers can readily use. This is a highly selective rather than exhaustive list, compiled with particular deference for lawyers who have more brief-writing experience than computer savvy. The methods described necessarily reflect my own litigation experience, as well as personal preference for certain commercial products. (For example, I am a certified trainer for CourtLink’s CaseStream® product for accessing court dockets and know little about competing products such as CourtEXPRESS.)

Lawyers must exercise their own professional judgment, of course, in selecting the best research steps and online service for any particular project. Nevertheless, professional brief writers increasingly use some variation of each of the computer options listed below. At some point, in some case, failure to include such automated procedures research projects may well prove inexplicable to courts and clients, and ultimately to ethics boards and malpractice insurers.

Online Research Databases

No opening question at oral argument is more disconcerting than this real-life example: "Counsel, did you see our ruling the other day in the Jones case, which raised the same issue?" Until recently, it was acceptable to explain that you had not yet had opportunity to see the court’s new opinion (although you would be happy to address it now or in a supplemental brief). Given today’s research technology, however, expect judges to be unsympathetic to such an excuse.

There are several ways to use automated searches to flag new precedent affecting your legal position. Consider these steps when making final preparations to file a brief or present oral argument, even when you have confidently completed researching totally "offline" from books:

1. Check the status of cited case law on the web.
   There is little excuse these days for citing outdated opinions, given how easy it is to check their status as good law using LEXIS and Westlaw. Simply type or copy and paste any citation on lexis.com or westlaw.com, and the service will produce the cited text displaying prominent warnings if there is subsequent history that calls into question the precedential value of the case. In fact, both services offer tools that totally automate the cite-checking process for an entire memorandum or brief. Working from an electronic file in a word processor CheckCite on lexis.com or WESTCheck on westlaw.com will examine each cited precedent in turn, producing a report that identifies any problematic citation warranting your attention.


2. Update critical precedent by monitoring its citation by judges and commentators.
   For make-or-break precedent, a thorough brief writer wants to locate any authority that so much as mentions that key opinion, whether it is another judicial ruling or secondary resource such as a law review article. Do you still have eye strain from ShepardizingSM cases back in the old days? You will be delighted to learn that computerized tools completely replace the red books and scattered pamphlets you undoubtedly remember with fear and loathing. The LEXIS version of Shepard’s® and Westlaw’s competing KeyCite® service are immensely easier to use—and therefore more foolproof—than any comparable resource from the physical library.


3. Convert opinion excerpts into searches for similar rulings.
   In addition to merely updating case law, use your favorite precedent in a more creative way by calling it up on the computer and selecting a snippet encapsulating the type of legal discussion you want to see in other opinions. Convert that representative language into a search for authority containing similar language. Lexis.com provides a "More Like Selected Text" button to retrieve opinions containing terminology that approximates the selected excerpt. Indeed, this methodology is available on Westlaw or any system with "natural language" searching that allows you to loosely describe an issue and retrieve cases that contain words similar, but not identical, to your phrasing.


4. Rerun your best searches, including any natural language snippet described above, just before filing or arguing a brief in court.
   This step is critical whenever a substantial amount of time has passed since you "finished" researching, such as when you prepare for oral argument months after submitting briefs. In fact, you can automate searches to rerun at periodic intervals and keep them turned on for the duration of your case. If you regularly check electronic mail, you can even track developments without logging back into the research system. Electronic "clipping" services such as LEXIS EclipseTM and Westlaw WestClips® send email notices directly to your inbox, flagging any new ruling matching your search terms.

Electronic Court Dockets

By automating their dockets over the past few years, state and federal courts have unearthed a treasure trove of previously buried research gold. Online dockets provide new ways to avoid ethical pitfalls, and also offer a wealth of information previously unavailable.

1. Monitoring Docket Entries.
   One of the surest ways to commit malpractice is to miss a litigation deadline. Monitoring docket activity in their cases is therefore critical for litigators. We live and die by the short deadlines, imposed by statute or judicial rule, for responding to pleadings filed by opposing counsel and orders entered by the court itself. Indeed, failure to receive the mail notice sent by a clerk’s office does not necessarily excuse ignorance of developments in one’s own case. See F.R.C.P. 77(d) and F.R.A.P. 4(a)(6). Lawyers never want to be in a position of trying to convince a judge that, through no fault of their own, they did not receive the clerk’s notice of a particular order.


2. Track dockets for new activity in existing cases.
   Waiting passively for timely mail delivery of federal court orders is riskier than ever, now that Internet services like CourtLink’s CaseStream® automate the process of monitoring docket entries. Be proactive and ensure that you learn of new pleadings and orders by using the CaseStream Alert system for monitoring federal cases. Simply establish an account on casestream.com and enter the court and docket number. At whatever frequency you specify, even on a daily basis, the service retrieves an updated docket from the court, stores a copy, and notifies you by email of its availability. Click on the link provided in the email message to see the latest version, including entries made by the court the previous day.


3. Track new cases by litigant name.
   You are not limited to monitoring docket entries in your own cases. CaseStream Alert allows tracking by litigant name, so that you can receive email bulletins whenever new cases are filed against your client, or even against opposing parties. Aside from the business development advantages of early knowledge of a new suit against a client, this type of tracking is often valuable in existing cases. Corporate defense counsel, for example, need to be on the lookout for similar suits against their clients. Plaintiff’s counsel with reason to expect similar suits against the same defendant now have a way to learn about such filings promptly.


4. Researching in Court Dockets.
   In addition to providing the means for tracking activity in existing litigation and the filing of new complaints, electronic court dockets constitute a research repository that is nothing short of revolutionary. The CaseStream Historical service, for example, opens new tunnels into the courts. Creative lawyers can gather Litigation Intelligence,SM searching across the federal court system by any combination of jurisdiction, judge, practice area, litigant, or counsel.


5. Know your judge.
   Spend a little time sifting through other cases handled by your assigned judge’s dockets for invaluable information unavailable until now. Has your local or opposing counsel ever appeared before this judge before? Has the judge handled many cases involving your subject matter? How does she typically handle motions relating to discovery? Does she ever grant motions for summary disposition? Answers to such important questions are so easy to obtain from electronic dockets that it is hard to imagine why a litigator would not use a resource like CaseStream.

   At the very least, lawyers considering whether to file a dispositive motion should study a judge’s track record in similar cases. If a particular judge never grants motions to dismiss, for example, why spend thousands of dollars worth of billable hours preparing one? Such concrete intelligence might temper counsel’s instinctive urge to roll the dice by requesting early dismissal.



6. Find winning briefs in similar cases.
   Do not reinvent the wheel at great cost to your client by researching from scratch when you can obtain briefs that persuaded your judge in similar circumstances. Electronic docket services allow you to pinpoint cases in which your judge granted the type of relief you are about to request in your own suit. Docket entries, after all, identify the subject matter of a case, as identified on the cover sheet filed at the start of any civil or criminal action in federal court. Before preparing a major brief, search court dockets to identify pleadings your judge found persuasive in similar circumstances. Ordering a copy of a pleading from a document delivery company is just a click away on casestream.com, and you can have the winning brief in your hands the very next day.

Free or Inexpensive Appellate and Supreme Court Brief Banks

Electronic access to courts has reached a certain level of maturity, while electronic filing is still in its infancy. When e-filing catches up with e-access, docket entries will contain hyperlinks to the full text of the underlying documents described in the entries, and litigators will routinely pull relevant pleadings, as well as judicial rulings, directly off the Internet. Do not dismiss the notion of such complete access to litigation filings as mere fantasy. Consider the very real implications of the recent joining of CaseStream docket access with JusticeLink court filing, under the CourtLink corporate banner (www.courtlink.com).

In the meantime, there are already web services providing disjointed but valuable access to Supreme Court and appellate briefs and opinions. Many of these services are free.

1. Retrieve Appellate and Supreme Court Briefs.
   Lawyers filing appellate or major trial briefs often want copies of the briefs filed in related cases in the United States Supreme Court or other appellate forum. Do not follow the traditional practice of sending a courier or local counsel to court to copy an important brief, if that document is instantly retrievable for little cost or even free on the Internet.

   Findlaw.com, for example, provides full-text access to all briefs filed for cases in which the Supreme Court grants full review. This free web resource may lack the extensive Supreme Court brief archives found on both LEXIS and Westlaw, but the Findlaw® Supreme Court Center provides the same type of hyperlinks to the full-text of precedent cited in each brief, much as the commercial service does. In fact, this virtual library of Supreme Court briefs has at least one advantage over the commercial databases that charge for searching. Findlaw, which is now owned by West Group, provides not just electronic copies in plain homogenized text, but also imaged "snapshops" of briefs in Adobe Acrobat’s portable document format (.pdf). Thanks to Adobe’s Acrobat Reader, which is available for free on the Internet, we can print out a copy that looks like the real thing. Downloading or printing off the web produces a mirror image of a filing in the familiar booklet format the Supreme Court requires, identical to the original down to the color of the brief’s cover.

   The United States Department of Justice provides another Internet library of enormous value to litigants with an interest in positions taken by the federal government. The Department of Justice web site contains an extensive archive of Supreme Court briefs filed by the Solicitor General. This repository includes important material missing from LEXIS and Westlaw because it is not limited to briefs in cases that the Court hears on the merits. Elsewhere on the same web site is a repository of briefs filed throughout the federal circuits by the Justice Department’s Antitrust office. Federal practitioners do not want to ignore this virtual library of research-rich appellate briefs reflecting the government’s litigation positions.

   Finally, there is at least one web service that provides a searchable database of Supreme Court and appellate briefs for a reasonable flat-rate fee for each document. BriefServe.com provides instant online access to tens of thousands of filings in the U.S. Supreme Court and more and more circuit courts. These pleadings and briefs are fully searchable and look exactly like the originals, thanks to Adobe’s .pdf format and free Acrobat Reader. You can download or print a copy of these briefs for a mere $25 each (minimum of two briefs at a time) regardless of the size of the file.



2. Receive Immediate Email Notice of New Supreme Court and Appellate Opinions.
   Brief writers want to stay abreast of new appellate opinions that could affect their cases. In addition to the type of commercial "clipping" service described above, some law schools provide free email bulletins describing each appellate opinion issued within specific jurisdictions. Lawyers would be hard-pressed to explain ignorance of controlling rulings from the appellate courts if there is such a subscription service within their particular jurisdiction.

   The Legal Information Institute (LII) of Cornell Law School in Ithica, New York, is a leader in this arena. Since 1993, the liibulletin has delivered official syllabi from new Supreme Court decisions via email, within hours of their issuance. Click on a link in the email message to access the complete opinion, which Cornell will augment with hyperlinks providing the full text of precedent cited by the Court. The LII offers a similar service for New York State litigators. The liibulletin-ny delivers email summaries of the more significant decisions of the New York Court of Appeals. The LII’s latest bulletin service focuses on patent appeals. The liibulletin-patent provides summaries of important patent decisions by the U.S. Court of Appeals for the Federal Circuit and U.S. Supreme Court, and more detailed commentary of a subset of those rulings. The summaries are linked to full-text decisions residing at the Georgetown University Law Center and Emory Law School sites, with handy links to key sources sited in the opinions, including the Patent Act and regulations and the Manual of Patent Examining Procedure.

   Check availability of similar services wherever you practice. Practitioners within the territory covered by the Ninth Circuit are particularly well served. Sterling examples of the many court-tracking tools designed for West Coast litigators are the subscription services provided by Willamette Law School in Salem, Oregon. The Willamette site publishes summaries of new cases as they are issued by the U.S. Supreme Court and by appellate courts throughout the geographic region, and each court-tracking service is available by email. From this single web site, researchers can subscribe to individual bulletins summarizing rulings of the U.S. Supreme Court, the U.S. Court of Appeals for the Ninth Circuit, the Oregon Supreme Court, Oregon Court of Appeals, and the state supreme courts for California, Alaska, and Washington.



3. Consult Web Directories of Legal Resources.
   Confused? Do not use that as an excuse for staying disconnected from online research. Many free directories organize the web for lawyers. Get comfortable with the structure of at least one directory and follow some of its links to find the resources most relevant to your particular practice. You cannot go wrong by starting with Findlaw.com. For a web-site directory designed specifically for litigators, consult the Law Library Resource Exchange compendium of Court Rules, Forms, and Dockets at LLRX®.com.

Conclusion
While nothing replaces the basic value of book research, the Internet has spawned an array of complementary resources that lawyers cannot safely ignore. Even the most proficient book researchers would disserve their clients by ignoring web-based tools. The best brief writers will investigate online services so that they can properly weigh the relative merits of print and electronic resources and choose the right combination for each research project.

Computer Research Checklist

1. Update the status of cited precedent just before filing a major brief or presenting oral argument. Options Include:
   • LEXIS at lexis.com
   • Westlaw at westlaw.com
     
2. Identify opinions or articles referencing your key cases. Options Include:
   • Shepard’s® at lexis.com
   • KeyCite® at westlaw.com
   • GlobalCiteSM at loislaw.com
     
3. Find cases containing discussions similar to representative language in your strongest case. Options Include: "More Like Selected Text" at lexis.com
   
4. Save your best search and have it run periodically to trigger email bulletins flagging any new court opinion addressing your legal issues. Options Include:
   • LEXIS EclipseTM at lexis.com
   • WestClip®.at westlaw.com
   • LOIS LawWatchTM at loislaw.com
     
5. Monitor the court dockets of your cases, and even track new suits filed against your client and opposing parties. Options Include: CaseStream® Alert at www.courtlink.com.
   
6. Conduct full historical searches in a court-docket database to learn about your judge. Options Include: CaseStream® Historical at www.courtlink.com.
   
7. Obtain samples of winning briefs in similar situations. Options Include: CaseStream® Historical and its links to independent document delivery companies at www.courtlink.com.
   
8. Access free or inexpensive Supreme Court and appellate briefs. Options Include:
   • Findlaw® Supreme Court Center
   • United States Department of Justice, Office of the Solicitor General, Government Briefs
   • United States Department of Justice, Antitrust Division, Appellate Briefs
   • For $25 per brief, BriefServe.comTM at
     www.briefserve.com
     
9. Subscribe to free email bulletins that flag new appellate rulings in your jurisdiction.
   Options Include:
   • Legal Information Institute of Cornell Law School bulletins at www.law.cornell.edu/focus/bulletins.html
   • Willamette Law Online! Sponsored by Willamette University College of Law at www.willamette.edu/wucl/wlo/
     
10. Get started with a web directory of legal resources. Options Include:
    • FindlawTM at findlaw.com
    • LLRX® Court Rules, Forms, and Dockets at llrx.com/courtrules

Copyright © Kerry L. Adams 2001. All Rights Reserved Except Those Granted by September 18, 2001, Copyright Agreement with the D.C. Bar