For almost the entire day yesterday, Thomson Reuters Westlaw was down. I am using it since 2009 and this was the first time I have experienced the outage there, overall a pretty good indicator of the things working 99% of the time. Suddenly being leaving me without my research tool, it was a powerful reminder that nothing is guaranteed to be ever-present and available for us online, and with our dependency on it, it is scary to think about the "what if" situation. This made me think of two things: that the progress in our profession could be curbed, and that we should take those contingencies into account if we wish to keep on going.
My Saturday morning's hopes to write a solidly researched brief were crushed by the uncommon greeting on the Westlaw's website, saying that "An error occurred when processing your request." A phone call to Westlaw using the provided number (after a long-long-long wait in line) only led me to a support person, whose only option was to tell me that this was a system-wide outage and that they don't know when Westlaw will be be back on. It returned online on 6:52am Sunday, and I hope the problem is fixed well enough for it to remain online steadily.
It might sound counterintuitive, but the weekends provide the best time to do a thoughtful quality research and writing. This is because the majority of the clients, vendors, and colleagues do not call or email you during those two magic days, and there are simply lesser distractions to pull you from whatever you are set to do. The life outside of your window is slower, the streets are quieter, and you yourself are also less likely to commute. Of course, there are friends or family things to do, but when you have a chance to sit down to write, the weekend is the best time to do so, at least that is usually the case for me.
This Saturday's one-day fiasco with Westlaw won't change the general rule about weekends and I was still able to write on Sunday, including this post. But it made me feel my dependency on the legal search databases, something I was just taking as given without a thought before. The downtime gave me a chance to rethink my options and this article is the resulting collection of my thoughts on the not-so-unreal scenario of "what if" all the online research sources would go dark. Think of it as my first step towards "emergency preparedness." In short, this should not be the end of our world, if we are informed and prepared.
For those who never heard before of the legal research market, I'd start with the observation that, at least in the US, two systems seem to dominate the scene: LexisNexis and Westlaw. The main part of how they attract and retain the users is the interlinking of their cross-indexed databases of court decisions, statutes, manuals, and many other services (legislative histories, copies of the briefs, people or property identity data, etc.). It is a matter of personal preference to use one or the other, and the larger firms usually utilize both. This is mainly due to the proprietary available "secondary sources" such as Matthew Bender publications (on Lexis) or the Rutter Group ones (on Westlaw).
There are other providers, but they usually offer a narrower coverage of the searchable texts in their systems: it is either the case decisions, or the manuals and review publications, but not both, and there is a very limited relational cross-indexing in between. In the field of the manuals and reviews, my personal favorite is the "CEB" (Continued Education of the Bar), but there are many other competitors, mainly on the side of the precedent collections, e.g., Casetext, FindLaw.
The scary thought here is this––what if both Westlaw and LexisNexis will go down? Will the legal profession stop in its tracks because of its lost ability to research effectively across the cases, statutes, briefs, and manuals? We are very dependent on this functionality. And while you might naturally think of both you as the user and the publishers as the content providers to migrate to whatever next system that would still remain in operation, it will take significant time. Most likely, it will be a longer period, than what you need to have your next brief done by its due date.
And if you think that going dark is an obscure hypothesis, consider that this very week our electricity provider (PG&E) is planning to turn off electricity in 13 counties in this California. The situation where you suddenly find yourself using a typewriter is not too remote after all.
In line with the no-electricity contingency, one alternative to remember is that we can still do it by researching legal publishers in print. At least in California, each county has a free law library with the collection of the up-to-date published cases and usually a decent set of the manual and review publications. But it is a tedious work, not for the feeble souls. You'll have to forgo the expediency of finding the results and you won't know if the celebrated precedent you found had been overruled last month. Outside of such latest changes left uncaught, you will be able to complete your work, just add enough grit.
Outside of the print world offline, think of the available electrical and Internet alternatives. I keep the Jackery solar power generator and the mobile Starlink modem handy, so when the outage hits, I can be back online in 15 minutes. When I tested this setup, I learned that my generator won't be able to keep the entire house "on," but it will power up the Starlink system and keep the laptop charged for a non-stop use of seven hours, which is often more than enough to survive the outage--and you would need to use them both only if there is also no cell signal, otherwise, just power up the laptop and the phone, and use its internet instead at a much lesser wattage draw than the Starlink. The convenience of the Starlink is in its pricing model, where you pay in monthly chunks only for the month(s) when you need it.
Once you are online, not going to the library, and still wish to use a computer database, consider the Google Scholar available to us free of charge. Sure thing, Google may go down just as well as anything else, but there is a chance of it standing up longer and remain available more often, simply because it is a larger, more dispersed, and more distributed system, than the web service company focused on just the legal databases. The downside of using Google Scholar is its rudimentary cross-indexing, which is ironic to say in the same sentence as "Google," but this is probably the result of the low priority for Google to develop the product further. While you can see what later cases cited the case you have found, you can't always see if the case was "published" or not, and you won't know if the consequent decisions treated your precedent favorably or negatively unless you read each of them. There is also no indexing as to what legal manuals cited that case.
This is where "AI" comes to the rescue. You won't need an expensive AI service that is touted specifically for the lawyers and sold to them at premium; a standard ChatGPT account will work. Apply AI to fill the gaps, and you can have a decent replacement for a legal research engine, and at fraction of the cost too: my Westlaw subscription is over $400/month; my ChatGPT Pro subscription is less that 5% of it, at $20/month.
Here is an example, a well-known case Spinks v. Equity Residential Briarwood Apartments (2001) 171 Cal.App.4th 1004.
If you press "How Cited" on the Google Scholar page, you will find out that it was cited 355 times as of the time when this post is written. There is no sorting provided in those 355 citations, all of them are shown together, published and unpublished, state and federal, local and out-of-state, positively and negatively treatments altogether. In short, a useless collection of cites.
But if you open ChatGPT and type this prompt:
list all court decisions that did not agree with the holding in 171 Cal.App.4th 1004
You will then learn about the Veiseh v. Stapp (2019) decision, something that invites you to read one opinion, rather than 355. It is important to note that, as you read Veiseh, you will see that the court there did not necessarily disagree with Spinks, but it will put you on the search trail.
What about the manuals? The well-organized and constantly updated copyrighted materials are understandably out of reach, but all is not lost with the help of the Internet, where we can still find articles on almost every topic. The key here is to keep an eye on the date of the publication, so you are not reading an outdated review. If you use the same Spinks case as the template, the straightforward Google (not Google Scholar) search query will bring you back a few articles to read:
Pleading Punitive Damages
What are the causes of action for common law wrongful eviction?
Can My Landlord Change the Locks on My Unit?
The above results are not a substitute for the Rutter Group or Matthew Bender treatises, of course. But it is something to indicate at least a few ideas, and perhaps suggest the cites of a few aligned decisions, to keep you in operation while the services are being restored. It is not a perfect solution, but it serves one important goal of showing that the alternatives do exist. So when the service will drop the next time, do not let the panic freeze you in your tracks. The outages will continue to happen, but that does not mean that you should be out with them.
(This is how AI sees the jurists of the past at work)
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