Lawyers as Surgeons

Attorney Scott Greenfield discusses in a recent post at Simple Justice the difference in research styles between attorneys who were trained before the Internet age and their younger brethren:

It was fairly common to find me in the early 1980s sitting at the big library table in old Milt Rosenberg’s office with a few stacks of books in front of me.  Trying to find a case on point often began with Corpus Juris Secundum, which separated headnotes by West’s key system. The trick to finding something spectacular was to always check a few key notes before and after the one that should be on point.  Don’t trust whomever categorized the headnotes, but check cases that were close because you never knew what you would find.
But that doesn’t happen anymore. That’s not how one researches law today. Instead, we frame Boolean searches to zero in on precisely what we’re looking for, and nothing more. There’s no leafing through the pages before and after, just because. There’s no way to do so on a computer.

In the early 1980s, I wasn't sitting at a library table digging through the CJS looking for cases. I was wearing diapers. But I was alive then, which is important to note because I, as a person in his mid-30s in 2016, occupy a weird temporal borderland between those nefarious "Millennials" and older generations such as Gen X or my parents, the Boomers.

When I started my educational journey through middle and high school, there was no Internet. "Boolean" meant nothing to anyone but the scientists at DARPA. It wasn't until I reached undergrad in the late 1990s that I had any kind of regular exposure to the Internet. By that time, I had already formulated methods of research and study that weren't anything like they are today. I remember what books smell like, and the frustrating sting of paper cuts.

Luckily, and unlike our parents in many ways, members of my little generational niche - those who straddled the transition from the pre-Internet stone age to our contemporary technological paradise - felt little pain in adjusting. We took to the Internet quite well and embraced our roles as technological Users with gusto. We're not the old fuddy-duddies who still gingerly touch the screens of their phones as if they might be hot. We are the original Early Adopters.

The Internet exploded into dominance when we were still young enough to be receptive to figuring it out, and we weren't particularly wedded to old methods of study or learning. But we did have exposure to those old methods, so some of us - at least I - still appreciate them.

As Greenfield points out, the old way you had to research the law was inefficient but had great value. You were prone to discover and learn a lot more than you set out to find in the first place. That method of researching the law is the same method I learned as an impressionable young student buried in the library digging up sources for high school research papers the old fashioned way.

Perhaps it is for that reason that I often get "distracted" in my legal research. I have a tendency to fall into a "Shepard's hole" (as I call it), which means I will start with a search for certain key terms or a particular statute and locate a relatively useful case, but then find myself an hour later reading a case that never showed up in the search results and is separated by four levels of citation from the the case I originally started reading.

It goes something like this:

My search terms reveal Case A, which is OK but not anything fancy. I Shepardize to make sure the case has not been overruled and notice Case A was cited by Case B in another jurisdiction, so I read Case B. Case B includes a closely-related issue and some useful language that comes from Case C. So I check Case C and find it's been cited by a judge in my jurisdiction in Case D. Sure enough, Case D is extremely helpful, even though it's not precisely on point in a way that my search terms would have revealed.

What this means is that I effectively still "leaf along the pages," albeit in a different way than used to be possible. A lot of attorneys (or judges) don't do this, and you'll often see in opposing briefs or opinions one or two very surgical citations with no extra context or useful examples even though they're out there. That's a shame, because attorneys should do more than just make sure their cited cases are still good law ("Sherpardizing" in its most clinical form). It's good to go outside the bounds of your narrow search logic to find the additional context for the legal issue you're researching.

Granted, it's not always useful. Sometimes you waste a bunch of time finding nothing of value and realize later you should have just stuck to your original search terms and the two cases they produced. But in my experience, more extensive browsing has been more successful than not.

I wonder sometimes whether I would still research like this had I not been raised in the old, different world Greenfield remembers clearly. It is certainly more difficult now than it was. Legal research is more surgical and the tools we use to cut through the law to find what we need do not incentivize broader investigations the way the old case books did.

But I like to believe that some of us younger attorneys are not quite the surgeons that our even younger colleagues have been molded by the Internet to be. Some of us still leaf through the pages, and our clients are better off because of it.