This is an update to my post last spring warning students about the potential repercussions of using Westlaw and Lexis passwords for summer employment. It appears that Lexis Advance has joined Bloomberg Law in permitting unlimited access to their research platforms for summer academic and employment purposes.
Since it has become clear that Lexis has its continued existence riding on the success of the Lexis Advance rollout, it makes sense that Lexis would make such an offer this year. So far, word of mouth is that the offer has worked well for Bloomberg.
Here’s the text of the email my students recently received:
Unlimited Access to Your Lexis Advance® ID this Summer
We are happy to announce that your law school Lexis Advance ID will remain active during the summer and that you will have unlimited access to the content available to you in law school to be used for your academic, as well as any summer associate or internship/clerkship purposes*. Whether working in a firm, government agency, any of the courts, or brushing up on your cost effective research skills, you will have unlimited access to Lexis Advance.
We understand that as a law student, your legal education does not stop during the summer. In fact, some of your most valuable and practical legal education occurs during your participation in summer associate and internship or clerkship programs. In recognition of this, for the months of June, July and August of this year, we are expanding the permissible uses of your law school Lexis Advance ID to include use by you in these programs, including all research or other work you perform for the firm, agency, or court. You simply need to be registered for Lexis Advance.
Registering for Summer Access
- If you’re already a registered Lexis Advance user, you don’t need to do anything else to get Summer Access. Your current ID is all you need.
- If you aren’t a registered Lexis Advance user yet (or aren’t sure), click here for assistance from your Account Executive.
Support throughout the Summer
Your school’s LexisNexis® Account Executive is available to you during the summer for training and support. Feel free to contact him or her early to let them know your summer research goals.
You also have access to 24/7 customer support for help with Lexis Advance, summer access or research questions at 1-800-45-LEXIS (53947).
Enjoy your “All Access Pass” to Lexis Advance this summer!
One of my favorite Westlaw features is the ability to create a KeyCite Alert that sends email updates whenever a new case cites a specific case. This feature is extremely effective at helping practitioners update cases. I’m happy to report (at the risk of sounding like a shill for Google Scholar) that you can now accomplish the same thing — for free — with Google.
Choose a case. Let’s say you’d like to keep abreast of the latest cases mentioning Marbury v. Madison, 5 U.S. 137 (1803). Here are the five steps required to create an alert for this case:
STEP 1: Simply navigate to the case in Google Scholar.
STEP 2: Once you’ve pulled up the case, locate and click the “How cited” link in the upper-left horizontal menu. You’ve just navigated to Google’s equivalent to Shepard’s. (See my previous post about Shepardizing using Google Scholar’s How Cited feature.)
STEP 3: On the How Cited page, we’ll be focusing on the “Cited by” heading. After a selection of documents listed under “Cited by” click “all [n] citing documents >>”. In the case of Marbury, the link reads “all 22,570 citing documents” (at this writing).
STEP 4: You’ve just navigated to a page listing all database documents citing to the document you’d like to track. On the upper-right-hand of your screen, click the button with the email logo next to “My Citations”.
STEP 5: Enter your email information and select the number of results you’d like to receive. Press “Create Alert and … Voila! You’re one step closer to staying abreast of recent treatment of a particular case.
Now for the disclaimers: Remember that Google Scholar has its limitations. Keep in mind that there may be some delay between the date of opinion issuance and database integration. Also, be aware that Google Scholar may not index every decision issued. You’re always at the mercy of Google’s bots and algorithms. And, of course, this post should not, under any circumstances, be considered legal advice and is not a substitute for complete updating of cases.
It’s clear that properly using citators to update research is part of an attorney’s ethical duty to conduct adequate legal research. See, e.g., Idaho State Bar v. Tway, 919 P.2d 323 (Idaho 1996) (failure to properly Shepardize caused counsel to miss statute of limitations resulting in suspension of license); see also Carol M. Bast & Susan W. Harrell, Ethical Obligations: Performing Adequate Legal Research and Writing, 29 Nova L. Rev. 49 (Fall 2004).
Given the importance of properly using citators such as Shepard’s and KeyCite, it comes as no surprise that attorneys are still reticent to use free legal research tools such as Google Scholar to update research.
Exactly how good is Google Scholar at updating research? Is it a plausible alternative to Shepard’s and Keycite?
These questions are part of a larger research project that I’m currently working on. Ultimately, these are questions only the individual attorney can answer after studying the various research tools. However, if my preliminary research is any indication, it seems that Google Scholar is every bit as accurate as commercial citators for updating case law. (For a discussion of this function of Google Scholar, see this previous post.)
Google recently announced that it is now listing cases based upon the extent to which the cited case is discussed, which– as the Law Librarian Blog points out– brings Scholar even closer to KeyCite/Shepard’s functionality. Here’s the text explaining Google’s change, courtesy of the Law Librarian Blog:
Today [March 8], we are changing how we present citations to legal opinions. Now, instead of sorting the citing documents by their prominence, we sort them by the extent of discussion of the cited case. Opinions that discuss the cited case in detail are presented before ones that mention the case briefly. We indicate the extent of discussion visually and indicate opinions that discuss the cited case at length, that discuss it moderately and those that discuss it briefly. Opinions that don’t discuss the cited case are left unmarked.
Given this change, I decided to conduct a simple test of two cases. I selected two state cases, each with a moderate number of citator results (around 40 results). For each case, I compared the KeyCite and Shepard’s results with the Google Scholar “How Cited” Results.
With respect to both cases, every citator result that affected the validity of the cases (negative citing references) appeared in all citators, including Google Scholar, towards the top of the results. All results that discussed the cited cases appeared in all citators, as well. In connection with these two particular cases, the ordering of results were substantially similar in all citators. Importantly, however, Google Scholar does not index most unreported or unpublished cases. So, if you want an accurate depiction of how many times a case is cited, there is no substitute for West or Lexis. But with respect to precedent that might actually affect a case’s viability, I found no substantive differences between the citators.
Of course, there are differences in the way Google Scholar and Lexis/Westlaw present the results. Google doesn’t provide any treatment signals (e.g., red flags, stars, etc.). Nonetheless, one might argue that this might cause attorneys to study the precedent more carefully, rather than rely on the West/Lexis characterization of precedent. I also found the case excerpts in Google Scholar’s How Cited results much more helpful than the excerpts provided by West and Lexis.
Disclaimer: Please keep in mind that this is is merely anecdotal evidence, not empirical research, and this post should not be considered legal advice.
As summer approaches, I feel it’s necessary to emphasize to students the importance of preserving the integrity of their educational passwords to Lexis and Westlaw. However, this year, I think it’s equally important to emphasize the same to legal employers, in light of a recent ethics decision.
Increasingly, students visit my office with a conundrum. It always goes something like this: “My law firm wants me to use my Lexis and Westlaw account to do legal research. I’m pretty sure Westlaw/Lexis doesn’t allow it, but I’m afraid to say no. What should I do?”
User may access and use Westlaw solely for educational purposes directly related to User’s coursework at Law School or for bar preparation purposes (“Educational Purposes”). Any other use, including any use in connection with User’s employment, any internship or externship, is prohibited…. Westlaw Charges incurred through use of the Law Student Password for Educational Purposes are waived during the term of this Agreement. West reserves the right to collect from User all Westlaw Charges incurred through use of the Law Student Password for purposes other than Educational Purposes at the then-current commercial Westlaw rates.
Read that again: “West reserves the right to collect from User all Westlaw Charges incurred.” This means that, in addition to potential termination of free privileges, students found to be using Westlaw for non-educational purposes may be personally billed for each and every minute of use on the job. That could amount to thousands of dollars in usage fees!
For students who find themselves in this situation, the idea of telling their superior the implications of their non-educational use isn’t a pleasant one. This is especially the case when students feel that the only reason they’ve been hired by small firms is because they’re seen as a source of free research. This is why I suggest that students couple their objection with a proposal to use free legal research tools to accomplish the same tasks.
Before approaching the employer, students should use a current or past research problem as an example and work through it using free research tools such as Google Scholar, FindLaw, or other free resources of law mentioned on this blog. Demonstrate to the employer that the same tasks can be accomplished using those free tools. Albeit Shepardizing/KeyCiting may be more difficult, citating can still be accomplished using Google Scholar. (For an explanation on how to Shepardize using Google Scholar, check out my previous post.) By demonstrating that the same tasks can be accomplished without violating Westlaw and Lexis agreements, the student is also demonstrating a positive, problem-solving work ethic and shifting attention away from the employer’s embarrassment.
Students and employers alike need to know that the practice of coercing students to use their Westlaw and Lexis educational passwords is unethical, and most likely, illegal. In fact, bar associations have begun to recognize the problem. To put the issue in perspective, in a recent opinion by the Utah State Bar Ethics Advisory Committee, the committee found the practice of requesting that students use their educational passwords unethical:
When a lawyer hires a law clerk, the lawyer is hiring the clerk for the clerk’s services and not for access to the electronic database. The lawyer has no expectation that the law clerk will breach the contractual obligations for the benefit of the lawyer. Indeed, the lawyer’s obligation is to make certain that the law clerk not violate any of the contractual duties and responsibilities….
Misuse of the student’s educational privileges is a theft of services. Utah Code Ann. §76-6-409. The companies have specifically limited the use of their products to non-profit or educational uses. The lawyer hiring a law student has no reasonable expectation that the law student will violate her contractual obligation to refrain from the use of those services in a for-profit situation. A theft of services is a violation of Rule 8.4(b). It is a criminal act, which, depending upon the amount of services wrongfully appropriated, could range anywhere from a Class B Misdemeanor to a Second Degree Felony. Utah Code Ann. §76-6-412.