Should Clients Pay when Lawyers Overuse LEXIS, Westlaw and other Services?

According to the ABA Journal clients are pushing back on paying for research on LEXIS, Westlaw and other data bases:

http://www.abajournal.com/lawscribbler/article/firms_wave_goodbye_to_billing_for_research_costs/

This makes sense to me.  As I point out in a comment to this article, a lot of research can be done with free on-line sources starting with Google and other search engines.  These lead to case names which lead to other case names, etc.    An increasing nubmer of judicial opinions can also be found on line, and there are full citations to other cases that can then easily be found in books in the law library.  There is also a lot of secondary material on important topics already in the public domain (law firm memos, briefs, bar association opinions and reports, government agency reports, etc.). 

After all of this material is examined for free, an experienced attorney can use Lexis, Westlaw, or a similar paid service to look around for what is left, which in many situations will not be much.  I have used these paid services relatively little in the past few years even though they are free for law professors.  I am surprised to hear that some law firms are still using paid research data bases so much that they need to send big bills to clients.  Those days are long gone and clients know it.

Comments

[Doug Richmond]

I haven't read the linked article yet, but would note at the outset that there are no longer law firm law libraries on any widespread basis, or at least not libraries that contain regional or federal reporters. Most firms of any size rely on Westlaw and Lexis for access to cases. In most instances, cases are more easily located on (in my case) Westlaw, and I would argue that the ability to search on Westlaw is faster than the web surfing you urge. The essential question is whether Westlaw and Lexis charges should be overhead that is factored into firms' hourly rates, or whether it can be charged to the client on some other basis. Assuming that it can be charged separately, the grittier problem is how to do so given that most firms have flat rate contracts with, say, Westlaw, but would prefer to charge Westlaw's time-based rates because it is far easier to do so.

[Richard Carmody]

As a member of the American Bankruptcy Institute, I begin most of my research at abiword.org. It is a great resource and well worth the ABI annual membership dues.

[Richard Carmody]

Sorry. Typo. abiworld.org.

[Noahsrosenthal]

If you know what case you want and just want to read it, you definitely should start with Google Scholar (though California lawyers know that Google Scholar usually gives you only the Cal Rptr. cite, often forcing you to go to Westlaw/Lexis because we use the Cal./Cal. App. reporters for most cites).

And I absolutely agree that free resources are the right starting point.

But at some point, if you have a project where you need to exhaust all avenues of research, you are going to have to go to Lexis/Westlaw to complete your research (a point Richard acknowledges). The problem is, there isn't a Lexis/Westlaw limit "not what I've already looked at through other research tools." I think you end up with a lot of duplication in this sort of situation and may be better off focusing on the paid search.

There are also other ways that Lexis/Westlaw research saves time. In general, using these products shifts the client's expenses from fees to research costs. While it's obviously not one-to-one in terms of dollar shifting, it's not accurate to say that the high research costs on Lexis/Westlaw are only a cost point; they are also a savings point.

[Rick Underwood]

I agree with Doug Richmond's observations.

I also think that law professor use of Westlaw may depend on what sort of research he or she is doing. Is it a think piece on some philosophical topic, or is it something lawyers might actually be interested in? (OK - My Bad).?

[Richard Painter]

Most of my articles on securities litigation and other topics are about cases not theory -- but I focus on recent cases that can be found from public sources. Westlaw and Lexis can help find loose ends, but most of the research is done before I get to that point.

Research on common law topics in a wide range of jurisdictions would be different and might require more use of paid data bases.

My point is not that they should not be used, but that they should not over-used.

RWP

[William T. Barker]

Lexis and Westlaw have editorial enhancements (e.g., key numbers) that facilitate research. Those of us in practice do not have the luxury of focusing only on recent cases or those we know about. And many (most?) of us do routinely deal with multiple jurisdictions (albeit not in the same matter). I will admit that I have never really relearned research skills using the free resources (having first learned them in the days of books--remember those. But I have seen no demonstration that the free resources are more cost-effective.