Oregon State Bar Bulletin — JANUARY 2003

The Case for Casemaker
What the OSB’s new online research tool will mean to you
By Cathy Crandall

Online legal research is nothing new. But, as many have come to realize, it can be expensive. Besides the normal operating expense, the substantial learning curve is hard to overcome when paying per search or per minute charges. For some practitioners, the cost simply does not compute.

A potential panacea comes to Oregon lawyers by way of the Oregon State Bar. The bar appointed a committee to explore the dual purposes of providing access to low cost online legal resources and more value to bar membership. Attorney Robert Swider, who served on the committee, liked what he saw in a demonstration of a service called Casemaker. With the approval of the OSB House of Delegates, the bar has entered into a five-year contract for Casemaker.

What is it?
Casemaker is an online legal research system. The Casemaker service permits search and browse functions for legal research through the Internet. The primary attraction of the service is its low cost compared to the big name online services, primarily Lexis and Westlaw.

The program started as an Ohio Bar Association project. The Ohio Bar teamed up with a technology company, Lawriter LLC, to move Lawriter’s CD library of Ohio legal materials onto an Internet platform. Lawyers in Ohio have had Casemaker available through the Internet since 1999.

Thomas Bonasera, a partner with an Ohio law firm of 350 lawyers and past president of the Ohio Bar Association, uses Casemaker in spite of the fact that his firm also subscribes to Lexis and Westlaw. Bonasera calls Casemaker indispensable. 'I use Casemaker daily. It is the first thing I turn to. I find it is easier to use than Lexis and just as good for the work I do.'

The Ohio State Bar, Lawriter and other bar associations have now formed a 'consortium' to produce additional online libraries. The service is marketed only to bar associations. When a bar association joins the consortium, it negotiates with Lawriter for the materials it wants in its library. Once a contract is signed, Lawriter employees go to work to create the new state’s database. The materials in the library may be from official reporters that have been digitized or West materials that Lawriter is authorized to use. Newer data comes directly from the courts. Upon completion, the new state library is added to the service’s entire database.

Thus far, in addition to Ohio (and soon Oregon), Connecticut, Idaho, Indiana, Massachusetts, Nebraska, New Hampshire, North Carolina, Rhode Island and Vermont have joined the consortium. Besides Ohio, only Connecticut, Massachusetts, Nebraska and North Carolina are currently online, with the others coming up in the next few months. Michigan is considering membership, although Michigan resources are already part of the service because Ohio requested them as part of its library. Some federal material is also included.

The response to Casemaker from other bar associations has been enthusiastic. Voluntary bar associations have reported an increase in bar membership directly attributable to the availability of the Casemaker service. Matthew Valerio, president of the Vermont Bar Association, calls Casemaker the 'most significant benefit of bar membership, ever.'

Our bar association is currently looking at the scope of the materials for the Oregon library. Once this is decided and a contract signed, it is estimated that it will take about nine months to complete Oregon’s database.

What does it cost?
The House of Delegates approved a dues increase for Oregon Bar members on Oct. 5, 2002. The increase attributable to Casemaker is $15 per member. That’s it. Bar members pay no search charges, no monthly fees and no charge for online time with the service.

How does it work?
Generally, bar association members gain access to the Casemaker database through a link on their bar’s website. Once the researcher is signed on to the Casemaker service, the library options are made available for searching. The researcher may access all the materials of any consortium member.

In each library, Casemaker offers two search modes, a simple interface for the 'basic search' and an 'advanced search' that offers additional interface elements. In basic search mode, searches are conducted by using keywords. Natural language searching is also available, which means that the researcher simply types in a statement or question and lets the program pick the keywords. The advanced search mode provides additional options, such as searching by docket number, using date and proximity restrictions and choosing results order. Many accomplished researchers will want to bypass the basic search and go directly to the advanced search template.

An additional means of accessing library material is the 'browse' mode. This mode is especially useful for statutory or code material, where the researcher can view material in series by clicking the 'next' or 'back' arrows.

Who Will Benefit?
Again, the relative expense is the primary draw. This means those that do not want to pay for services such as Lexis or Westlaw will have a viable option for online research. Principally, this should appeal to solo practitioners and smaller firms.

The two-attorney Koenig Law Office in Omaha, Neb., is a good example. Angela Dunne Tiritilli does most of the legal research for the firm. She uses Casemaker, on average, twice a week and describes Casemaker as an excellent resource. The firm does not use any other online service, but as a Lexis and Westlaw instructor, Tiritilli finds Casemaker compares favorably for accessibility, accuracy and ease of use.

The benefit to smaller firms is not, however, the full story. In spite of some advantages to online and digital services, many attorneys still favor print resources. According to the ABA Legal Technology Resource Center 2001 Survey, attorneys use print material on average 10 percent more than online resources. Certainly, familiarity and cost are factors in this preference. If, however, the idea of online legal research has any appeal to the practitioner, Casemaker offers a way to make the paradigm shift from 'the books' to online resources — without breaking the bank.

The shift in research skills is not trivial. Instead of West digests with their familiar key numbers, now the researcher must consider key words, synonyms for those key words and how they would be used in an opinion. Depending on the issue, a key word search often results in the researcher either wading through a pile of irrelevant material or wondering why a search pulled up nothing. As a digital researcher (using CD and online resources) for several years, I have found that print resources are simply better for researching some issues or for starting out in an unfamiliar area.

On the other hand, there are several advantages to digital research, not the least of which is the ability to cut and paste material straight from the case or statute into another document. In addition, a proficient researcher can find relevant material that might otherwise escape discovery. For example, West key numbers require the researcher to go through a layer of someone else’s interpretation of what a case is about. If the researcher’s thinking and the headnote author’s do not coincide, the researcher may not find the case. Removal of that additional layer of interpretation might help broaden what the researcher is able to find.

As a result, two benefits not immediately apparent may come from the Casemaker service: proficiency in keyword searching on Casemaker will cost nothing but time, and the alternative to print material will provide more comprehensive research.

The Good …
Casemaker has the potential to be a valuable tool. Some of the reasons why include:

The service is available to the researcher anywhere there is an Internet connection. This will be of immense value for road warriors, those burning the midnight oil after work or people with sick kids. Rural lawyers, who often do not have a full-service library close by, may gain some additional resources beyond their own office’s materials.

The price is right. The cost is very low (or 'free,' because active members of the bar in Oregon have to pay the approved bar dues).

The service is easy to use. The interface is well marked for navigation.

Casemaker may reduce print library expenses. Depending on the needs of the practitioner and the contents of Oregon’s library, the $15 extra paid in bar dues may be more than offset.

Casemaker will act as an annotator. If the researcher wants to know how the courts have interpreted a particular statute, simply enter the statute number in the search mode and pull up the all cases that cite the statute. If that is not focused enough, enter the statutory language at issue and only those cases that actually quote the statute will be retrieved.

… and the bad
Casemaker is not, however, the only resource the practitioner will ever need. The old adage that you get what you pay for is true here. While Casemaker works well, it is not Lexis or Westlaw. The material is not nearly as comprehensive, nor is the searching as robust. Updating is not as frequent, either.

Other things familiar to the Lexis or Westlaw researcher are missing as well. One absent tool is a citator service (like Shepards). Lawriter represents that this is being explored. In the meantime, the citation of the case (or name if it is not too common) can be searched to pull up all subsequent cases where the target case is cited. It will be necessary, however, to look at all the subsequent citations because there is no way to know how the target case is being treated. To be sure that the target case has not been overruled, the researcher need only look at the latest case citing it.

Multiple library searching is not possible. The ability to search other states’ materials is a nice benefit, but the libraries cannot be searched simultaneously. Once the researcher has developed a successful query, it will be necessary to enter it in to each library to be searched individually.

The Ohio bar site mentions what may become a minor annoyance — the necessity of viewing the license agreement at sign-on every 30 days.

Experienced online researchers will have some adjustments to make with Casemaker. Casemaker uses 'set logic' for searching. Those familiar with Boolean searching will recognize some of the same concepts, but will have to adjust to the different ways of expressing them in the Casemaker search. In my experience during a free trial of Casemaker, I found that search commands were not as intuitive as those in Lexis or Westlaw.

Another potential problem is that all jurisdictions may not join the Casemaker consortium. For example, even though Idaho has already signed on, Washington may not. Washington practitioners already have free access to cases and statutes through the Municipal Research and Services Center at www.mrsc.org.

Finally, if an Internet connection problem arises (and that has been known to happen), there is no way to access the library materials. One must also assume that the service will be maintained so as to be accessible. While writing this article, I experienced difficulty in accessing the trial subscription. Mr. Bonasera reports, however, that he has never experienced any problem with regular service through the Ohio Bar.

Other Considerations
One major item of remaining business is the content of Oregon’s library. The benefit of Casemaker can be greatly enhanced by the material we, as members of the bar, choose to have available.

Case law, statutes and the Oregon Constitution are obvious selections. Oregon Administrative Rules and certain administrative decisions would be nice. CLE material, forms, city and county codes, court rules and trial court decisions of widespread interest are other items with potential appeal.

Some other bar organizations have chosen to include bar periodicals, published federal district court decisions (F. Supp.) and ethics opinions. Only creativity, availability and cost limit the scope of material that could be included.

Another matter that will require consideration is potential liability associated with the use of Casemaker. Is there exposure for failure to use Casemaker because of its availability to all members of the bar with Internet access? Attorney/author T.R. Halvorson has said that it is 'incompetent' to fail to conduct online legal research under some circumstances. Some writers have gone so far as to suggest that failure to search the Web in general might be construed as malpractice. These writers question how long it will take before some hired gun expert testifies that any particular attorney was, in his opinion, negligent for failing to check the Internet because, had he done so, he would have easily learned the important omitted fact that caused his client’s claim to fail.

While a reasonably prudent lawyer will not necessarily use every single resource for every particular circumstance, the possibility exists that a service provided by the bar has some aura of official approval associated with it. The gap between what’s out there and what is reasonably accessible to the practitioner is a source of tension not likely to be relieved by Casemaker.

The other side of this question is the potential for negligence in relying solely on Casemaker. Because of limits on the scope of material available and the updating schedule, there is a very real possibility of embarrassment (or worse) in court because a Casemaker researcher missed an older federal case or new Oregon case. Practitioners and researchers need to be fully cognizant of the limits of the service itself and their ability to use it.

The Bottom Line
Even with its limitations and some uncertainty, however, Casemaker will be a big step forward in the availability of reasonably priced online legal resources. Casemaker is unlikely to replace all other sources of relevant information, but should prove to be a valuable option for legal research for all members of the bar.

Cathy Crandall is an attorney with Bodyfelt, Mount, Stroup & Chamberlain in Portland. She works in the areas of insurance coverage and litigation support, and enjoys doing legal and other types of research. She may be contacted at crandall@bmsc-law.com.

© 2003 Cathy Crandall

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