Legal Research in the 21st Century: More Results Faster
By Tami D. Cowden

I first used electronic legal research more than 25 years ago, as a first year law student. In those days, students didn’t have unlimited access to the few electronic resources available. First years got a brief training session on one of two computers—with dial-up access—available. After that, only those of us doing moot court or on law review could access the paid services.

No worries, though, as we were told that these services were far too costly for firms to use on a regular basis. Sure enough, in my first firm, a small bankruptcy practice, electronic research was not an option. But then again, in that firm, I did not even have my own computer to use. Yes, I am really that old.

Then I became a law clerk for a judge at the Colorado Court of Appeals and I once again had access to computerized legal research—using a database maintained by the Colorado Court system. Even after I became a staff attorney at the court, it took a year or two before I actually had a computer at my own desk. But, from that point on, my legal research had been done almost exclusively online (although I am not sure that term actually existed at that time). I’ve never looked back. And since even law school libraries are cutting down their hard copy purchases, it does not seem likely any of us will be hitting the books much in the future. Instead, as we perch on the cusp of the second decade of the 21st century, attorneys have a plethora of options for computerized legal research, including quite a number of free resources.

Today, most, if not all states maintain Web sites with their statutes and regulations available. Most appellate courts offer at least their most recent opinions online. And sources such as Findlaw.com maintain sizable databases of assorted legal materials. While these sites are fine for quick and easy access to known sources, their searchability leaves much to be desired. Moreover, secondary material, or the goldmine of briefs and other court documents remain largely available through Westlaw and Lexis.

Nevertheless, a few alternatives are emerging:

Google Scholar
One of the newest entrants into the legal research field, Google Scholar is not intended for the legal professional. Instead, the legal database is intended to make legal opinions and journal articles accessible to the general public. Accessible at http://scholar.google.com/schhp?hl=en, through choosing the "Legal Opinion and Journals" option. Google Scholar offers 80 years of federal case law, including bankruptcy and tax courts, and 50 years of state case law. Each search result has a link to the full text of the opinion, with the official citation and page breaks and page numbers. The "How Cited" tab shows how the current opinion was cited in other cases. Use of the "Advanced Scholar Search" allows searches by name, jurisdiction, and subject area.

Obviously, the price is right for this product. I use it when I know the name of a case, but need the citation or want the full text of an opinion. I also now cite Google’s cases in my blog, giving readers a free link. However, I would not rely on this service for anything but preliminary research. If there is a way to search only legal periodicals, I haven’t figured it out.

Fastcase
All active members of the Nevada Bar have free unlimited access to Fastcase’s Nevada and federal case law, federal and most state statutes (unannotated), and a few other databases. Access to additional databases is available for flat fees that are quite reasonable.

The search options include Boolean and Natural language, as well as "Keyword." The order of results can be customized according to your preference. Fastcase offers links to Web sites for Sherpardizing or Keyciting, for credit card payment to Lexis or Thomson/West respectively. Fastcase also offers a free app for iPhone. What Fastcase does not have right now are secondary materials, although they promise them in the near future. Find your way to free access at http://www.nvbar.org/MemberServices/fastcase.htm.

TheLaw.Net
Barely a day goes by that I don’t receive an email from TheLaw.Net, telling me how much its users like it over other products. I haven’t tried it, but only because I already have the access I need from other providers. If I were in a smaller firm, I’d definitely be checking this company out. The flat rates are quite affordable and the databases look complete, including secondary source materials. Additionally, Law.Net’s search platform appears to be precisely what the big guys are just getting around to providing with searches across multiple databases. Learn more about The Law.net at http://www.thelaw.net.

As you might expect, with this new competition, Westlaw introduced its slick new research platform in February, while Lexis is introducing a new integrated tool this year, and a new platform in 2011. Here’s what the big guys are offering:

Westlaw Next
I had free access to Westlaw’s new enhanced service for two weeks. Now deprived, I freely confess to the sin of coveting. While I usually take touted improvements with a grain of salt, my own testing revealed that Westlaw Next offers better results than plain vanilla Westlaw. The primary advantage, in my view, is that it automatically searches all databases. The results are broken into separate categories. Opinions, statutes, regulations, administrative decisions, law journal articles, and so on, are all listed—the researcher then accesses those results desired. Because the search looks in places I hadn’t thought of, hidden treasures are unveiled. Westlaw Next also fixed a lot of things that really weren’t problems to experienced researchers (i.e., those who don’t rely primarily on natural language). But what that means is that developing queries is apparently a bit easier. Other changes include various tools for organizing and notating research.

Right now, Westlaw Next is an add-on, with a higher charge than the basic service. I suspect, though, that customers will demand the premium version become the standard. Read about Westlaw Next at http://west.thomson.com/westlawnext/default.aspx.

Lexis-Nexis
Not to be out done by Westlaw, Lexis-Nexis is also introducing new platforms, although "New Lexis" is taking a two tiered approach. First up is LN for MS Office—Lexis integrated into Microsoft Office—allows research directly through MS Word or Outlook. This is meant to be used with the new MS Office 2010, expected to be released this summer, but will also be compatible with MS Office 2007. The "New Lexis" platform is currently scheduled for release next year. It’s not clear to me exactly how the legal research aspects will change, although in addition to Lexis’ own internal databases, searches are expected to pull directly from the Web as well. But what Lexis is really touting is the productivity tools it intends to marry with its platform. These elements focus on helping lawyers evaluate a case, in terms of both the likelihood and cost of success.

The bottom line
Review the Web sites for any of the paid services, new and old, and you’ll find lots of explanation of their algorithms, employment of synonyms or concepts, and how the results are sorted (i.e., date, relevance, most cited, etc). These important issues are far too complex to discuss here. But ultimately no amount of technology will make up for a poor query. Someone once suggested that the best way to find the case you need is to think about what the perfect case would say, then search for that ruling.

Good advice.

Tami Cowden is Of Counsel with Greenberg Traurig LLP. Sadly, she has devoted her life almost entirely to legal research and writing, and thus finds the topic endlessly fascinating. Commiserate with her at This e-mail address is being protected from spam bots, you need JavaScript enabled to view it or read her blog at www.AppealingInNevada.com.

The Collision of New Technologies, Social Networks, and the Rights of Privacy and Publicity
By Mark Tratos

Technology has always outpaced the law’s ability to adapt. Yet the pace of technological change, when coupled with new social media and major generational shifts in communication, is threatening to upend some of the rights most citizens believe they fundamentally possess. In 2009, the Nevada Legislature tried to strengthen privacy protection for Personal Identity Information (PII)—a person’s name together with an address, social security number, date of birth, and banking information—by passing the Data Collection, Protection Encryption Act, NRS 603A (SB No. 227). Nevada’s new law requires any business that collects personal data on individuals but does not comply with the current version of the Payment Card Industry (PCI) Data Security Standard, to use advanced encryption technology to store, transfer, or move personal information data. Ironically, even as legislators try to strengthen the protection of personal privacy, new technology and social networking trends are making it more difficult for individuals to enforce their privacy rights because they have a reduced expectation of privacy due to the amount of personal information they post publicly on the Internet. The data protected by Nevada’s new law relates to key personal and financial information, yet an ever larger portion of the public seems willing to share such information with the public by postings on social networks.

Historic origins of the right of privacy
Although the ancient Roman law tort abstract included "any acts which constituted willful disregard of another’s personality;" and the Jewish Talmud required certain building restrictions so that a person could not peer into his neighbor’s house, the modern origins of Anglo-American rights of privacy are more recent. The right of privacy can be traced to Samuel Warren and Louis Brandeis’s Harvard Law Review article, titled "The Right of Privacy." Warren and Brandeis wrote that every person had the "right to be left alone." The emerging technologies of the late 1800’s made it possible for individuals to be photographed unknowingly and their image sent across the country over telegraph lines and duplicated in newspapers in a matter of hours. Warren and Brandeis argued, "The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns in the daily papers . . . The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity to the solitude and privacy and have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury." 4 Harvard Law Review 193, 195-196 (1890).

Seventy years later, Professor Prosser reviewed all of the cases prosecuted under the title "Rights of Privacy" in his California Law Review article in 1960. Prosser divided the tort of invasion of privacy into four discreet categories: 1) Intrusion upon solitude, 2) public disclosure of private facts, 3) false light, and 4) commercial appropriation of another persona without consent. 48 California Law Review 383. Within a few years, that fourth tort was joined by a corresponding right that focused not upon the injury to one’s feelings, but an acknowledgment of the injury to one’s economic exploitation coined, the Right of Publicity.

Reasonable expectations of privacy
A common characteristic that three of the four rights of privacy share, is the requirement that a person asserting the right of privacy have a "reasonable expectation of privacy." For example, Las Vegas resort guests have a reasonable expectation of privacy in their rooms, but not when walking on the Las Vegas strip, nor even when sitting at the gaming tables where the ubiquitous eye in the sky is protecting the integrity of the gaming activities. For the rights of privacy of intrusion upon solitude, public disclosure of personal facts and false light, the conduct of the person asserting the right is relevant in determining the reasonableness of the plaintiff’s expectation of privacy. This is where the tension with new technology and new generational uses come into play.

Most parents of school-age children recognize that their children are never completely alone; they are in constant electronic communication with their friends. If they are not texting on their cell phones, they are occupying time on their favorite social network. MySpace and Facebook have evolved into personal biographical sites that serve as both a public platform announcing the owner’s taste in music, dress, vacation preferences, and the like, to those who do not know them well, and also a moment-by-moment diary of activities for those with whom they have constant contact. When people post information about themselves to an ever-widening public audience, can they reasonably argue that their expectations of privacy have not been reduced?

Public postings can have unintended consequences
In a case decided last year in California, two female students were dismissed from their Lutheran High School because of homosexual comments made on their MySpace pages. In Doe v. California Lutheran High School Association, 170 Cal. App. 4th, 828 (2009), the California Court of Appeals upheld the high school’s right to expel the girls based upon the statements on their MySpace pages. The Court noted "the complaint of Mary Roe and Jane Doe isn’t that they are excluded from purchasing a sweatshirt or going to a football game, but their dismissal from the school goes to the very heart of the reason for the existence of the (Lutheran High School)."

In December of 2009, Facebook underwent changes that made its user name, profile picture, current city, gender, networks, fan pages, and friends list all publicly available. Thus, rather than having the general information restricted to those that you invite to view your information, Facebook has now made full public access the default setting. The Electronic Frontier Foundation has concluded "these new privacy changes are clearly intended to push Facebook users to publicly share even more information than before. Even worse, the changes will actually reduce the amount of control that users have over some of their personal data." Thus, the burden has been placed upon the individual Facebook user to protect themselves because Facebook wants to be able to sell their information to other businesses.

Rights of publicity no longer require lifetime exploitation
While Andy Warhol quipped that with the spread of media, everyone would be famous for 15 minutes, even he would be surprised at the sudden elevation to celebrity status caused by changes in the media. The 1990s writers’ strike in television brought an avalanche of reality TV shows. Those shows frequently focus upon the lives of otherwise ordinary individuals who, through personality, talent, skill, and yes, in some cases, just dumb luck, become known to millions of viewers. Occasionally, their celebrity status sticks, although no one knows exactly why. [Think Paris Hilton or John Wayne Bobbitt.]

It is perhaps this increased notoriety given to regular members of the public that has led to America’s national narcissism. It now appears, not only will everyone be famous for 15 minutes, but more importantly, an increasingly percentage of the public wants to be famous. It is this desire to attract public attention that may elevate people from the status of private citizen to that of public figure. Public figures, are however, treated differently under the laws of privacy and publicity. They have inherently reduced expectations of privacy. Like the tort of defamation, a violation of the right of privacy is made more difficult to prove because the claimant must prove that the defendant acted with actual malice. Thus, unwittingly, people seeking the attention of others by extensive self promotion may be unwittingly removing themselves from the category of private citizen with a "reasonable expectation of privacy." Undoubtedly, rights of privacy claims will become more difficult for some plaintiffs to prove as defense counsel will be able to use the information that the plaintiffs themselves have posted on social networks as evidence of such a reduced expectation of privacy.

Unexpectedly, media networks may also be injuring potential plaintiffs’ rights of publicity claims. How much is the unauthorized use of your name, photograph, or likeness worth? If all of your friends have your images on their MySpace and Facebook pages, and they paid nothing for that right, are you really entitled to a damage award when someone else uses your image on their website? Internet savvy defense lawyers will undoubtedly argue no.

Despite efforts by Nevada Legislation to strengthen rights to PII, more of the public is losing its reasonable expectation of privacy. It is not the technology or social networks alone that is causing the loss. It is the public’s changing attitude about the amount of personal information they are willing to share with others. When individuals do so, their reasonable expectation of privacy is reduced and perhaps their ability to claim unjustified exploitation in a right of publicity matter may similarly be challenged.

Mark Tratos is the Managing Shareholder of Greenberg Traurig’s Las Vegas office. He teaches Cyber Law, Rights of Publicity and Privacy Law, and Entertainment Law at UNLV’s Boyd School of Law. He teaches Data Base Licensing for the Practicing Law Institute and writes and speaks extensively in the fields of Intellectual Property and Entertainment Law.