Page 10 - Delaware Lawyer -Spring 2021

FEATURE | FROM DETECTIVE TO CURATOR
as to which potential corporate clients might be open to switching their repre- sentation in certain areas. The applica- tions to practice are endless, assuming, again, that these tools are part of the attorney’s subscription.
The hot debate in legal research used to be print versus online research. While some materials are still available in print (and some, particularly from smaller, more niche publishers, may still only be available in print), the major- ity of legal research is being conducted online. But the latest matchup in legal research fight club is free resources in one corner, paid subscriptions in the other. We are fortunate to be living in a time when there is more access than ever to free versions of statutes, regula- tions, case law, newsletters, blogs, and many other sources of legal informa- tion that are just an internet browser search away. There are many wonder- ful resources out there provided by law schools, firms, think tanks, nonprofits, agencies, other governmental entities and many other institutions — free to anyone with Wi-Fi. These free tools can help us locate basic information such as statutory citations or current state court dockets without incurring search costs. Or track down a law review ar- ticle in an open-source repository like Law Commons or other current legal commentary.2 But pages upon pages of browser results can be overwhelm- ing. How do researchers deal with the overload? They stick to the first few re- sults, what’s right at the top and easy to access. Legal scholar Karl Llewellyn, author of Jurisprudence: Realism in Theory and Practice, coined the phrase the “threat of the available” and de- fined it as:
“the almost inevitable tendency, in any thinking, or in any study, first to turn to the most available material [and] ... having once begun the study of the available to lose all perspective and come
shortly to mistake the merely available, the easily seen, for all there is to see.”
Law librarians and legal scholars
have applied this concept to explain why students and attorneys often turn time and time again to paid, online re- search databases when other resources may be more applicable, and why they tend to begin their research in case law databases (having had a steady diet of case law in their textbooks) rather than treatises or practice guides that would give them the framework and back- ground they need to make sense of that case law.3 It applies as well to Google searching and the tendency not to click into more than a few links at the top of the results list. Or, if you prefer a less academic explanation, the best place to hide a body is page 2 of Google (as page 1 results receive up to 95% of traffic).4
But is stopping at that first page of re- sults wise? Google is powered by AI, and its algorithm, just as with the algorithms used in those paid platforms, is trying to guess exactly what the researcher is trying to find. It works well when what we’re seeking is a discrete piece of infor- mation such as an address or a case cita- tion. It does not work well when we’re trying to find something a bit “hazy” that could be called by many different names (did we even use the most com- monly-used terms to describe it in our search?) or that is rather esoteric and not likely to have been written about in free resources. Google and many other search engines also factor your previous searches into the results they show you on subsequent searches. Talk about the threat of the available! The search en- gine will keep suggesting the same re- sources or the same types of resources to you over and over because they are what you clicked on last time, even if they ul- timately did not result in helpful infor- mation. It’s like Spotify recommending similar artists over and over — how will you ever discover new music?
‘Free of Charge’ Comes at a Cost
Even if we push ourselves to move beyond that first page of results to see what else is out there, these free alterna- tives may not be equal to their paid ver- sions. They may not be as user-friendly or comprehensive, or they may not be updated regularly. They may be pro- vided by a source that is questionable or whose authority is hard to verify. And they often lack editorial enhance- ments such as hyperlinked references and related materials, or resources that interpret the document in ways that are key to understanding and applying that resource to the case at hand. Cer- tainly, there is a lot of information out there without a pay wall to overcome, but the user instead pays with their time — time to thoroughly review and vet the resource, time to pull together materials from many different resources to find the equivalent of a single paid resource, and time spent applying that research to their practice without the assistance of AI to automate some of these tasks.5
While these new technological en- hancements are exciting and afford new possibilities for legal practice, they may also generate a sense of fear and anxi- ety among attorneys. If these research systems are so powerful and can do so much, is the attorney researcher be- coming obsolete? Thankfully, contrary to most science fiction movies, these machines are not about to replace us any time soon. AI and machine learn- ing can help attorneys do their work, but they still require input, analysis and review by human minds. We must learn to work with and leverage these tools to our advantage, and this means transitioning our research skills yet again. The bulk of these tools focus on automating lower-level research tasks, like conducting that 50-state legisla- tive review or manually running brief citations through a citator to make sure
8 DELAWARE LAWYER SPRING 2021