The classic image of a lawyer preparing for a case is someone hunched over a book of statutes in a dimly lit legal library, searching desperately for the precedent that can lead to victory. But the technologies of the 21st century have brought tremendous change to the ways people access information—changes that have spread into the legal world. Attorneys no longer spend hours and hours flipping through tomes of statutes, instead, they scroll through pages and pages of virtual case law on online databases. Most legal records have been digitized in the past 20 years, and the resulting ease of keyword searches and the ability to have hundreds of thousands of cases at one’s fingerprints have revolutionized the world of legal research.
There is a catch, however. This revolution has not spread through the legal world equally. Nearly all of the legal documents available online have been accessible only through paid services. Recently, many efforts have sprung up to create cheaper, or even free access to case law. However, most of them have yet to be successful. As of now, the companies running paid services, such as LexisNexis or Westlaw, have obtained near monopolies on the market, and are able to charge high prices as a result.
“You simply have to be able to keep up on case law,” said David Kreisler, an attorney at the personal injury firm Terry Garmey & Associates in Portland, Maine. “Virtually any motion—certainly briefs—require citation to legal authority, and even evaluating cases that are not say run-of-the-mill negligence cases often requires legal research.” Kreisler’s firm has a subscription to LexisNexis, which he said, though expensive, is “just the cost of doing business.”
Given the high prices, which depend on just how much of a database a firm wants to access, many firms with lower resources are stuck spending large amounts of their earnings on access to documents. This drastically limits the amount they can spend on other legal expenses, such as paralegals and other personnel, widening the disadvantages between them and wealthier firms.
However, many organizations nationwide are attempting to level the playing field by providing case law online for free. Perhaps the most visible program has been the federally sponsored Public Access to Court Electronic Records (PACER), which provides public access to federal court records. However, PACER has been the subject of heavy criticism ever since its creation in 2001.
“It’s about the clumsiest, klutziest thing you’ve ever seen,” said Jerry Goldman, a professor at Chicago Kent College of Law.
Besides having a relatively outdated website design, PACER is also somewhat limited in its application. It functions by allowing anyone to sign up, and giving an allowance of $15 every three months to use on the site. However, the fee for every page on the site accessed is 10 cents. According to Goldman, this adds up rather quickly. “If you’re searching for a big case, you can sometimes get 50, 100 pages of search results,” he said. “That’s $10 right there, and you haven’t even clicked on a case yet. The amount of research you can do through PACER is limited.”
There have been many attempts to make the PACER files more easily accessible. Perhaps the most successful is a Chrome extension called RECAP designed by hacker Aaron Swartz. The extension, once downloaded onto the computer of a PACER user, uploads any files used on the site to a database stored at the Internet Archive in San Francisco. Slowly, as more and more PACER users download the extension, that database is growing larger and larger.
Another organization attempting to make law records more accessible is one of the most prominent legal institutions in the world: Harvard Law School. In conjunction with a large California law firm called Ravel Law, Harvard is currently working on scanning and uploading its entire physical collection of legal documents, which contains almost all case law released in US history, from the Supreme Court to local district courts.
“Improving access to justice is a priority,” said Martha Minow, dean of Harvard Law School in an interview with the New York Times. “We feel an obligation and an opportunity here to open up our resources to the public.”
However, some have been skeptical about just how open those resources will be. For the first eight years of the database’s existence, it will only be available for non-profit organizations and legal scholars. After that point, it will be opened to the public.
Even when the database opens for public access, some have their doubts about the true ethics of the project. “Ravel Law, a commercial firm, put a lot of money into this project,” said Goldman. “Someone has to be making money for this.”
Goldman himself thinks the most viable alternative to the large for-profit database organizations is a database called Fastcase. Fastcase, which has a similar layout and features as the larger databases, primarily reaches attorneys by contracting with state bar associations. With the state bar footing the bill, the database is made available for free to all attorneys within the association. By 2015, 21 state bar associations had subscribed to the service.
One problem Fastcase has is a lack of saliency. Outside of states where the bar association has a contract with the company, few attorneys know much about the service. In Maine, which is not subscribed, Kreisler had never heard of the organization.
Lack of name recognition is a problem for all these alternatives to the larger companies, and perhaps one of the major reasons why the big players—LexisNexis and Westlaw—aren’t all that worried about their business being hurt by expansion of these programs.
“I don’t anticipate [these developments] having a significant impact on our business,” said Andrew Martens, the chief officer at Westlaw in comments to the New York Times. Not only do the larger firms have greater market penetration, but they are also beginning to offer more and more services to law firms, like computer programs that help draft arguments, which databases that only provide case law cannot compete with.
Still, there is something to be said for creating at the least a floor of information available to lawyers for free. While it may not solve the problems of inequalities between small and large resourced firms, it certainly could provide some relief.
“I don’t know if it will create a level playing field,” said Kreisler. “That said, if a small firm or a solo practitioner had free access to a legal database that would certainly be a great help.”