Surfin' Safari - Why Competent Lawyers Should Research on the Web

ABSTRACT The easy availability of information on the internet has drastically changed the way that lawyers conduct legal research and has also affected the standards .for competency to which lawyers are held. This Article explores the ways in which judges' and lawyers' expectations have been shaped by technological changes in the last two decades. The Article reviews the various ways in which the adequacy of a lawyer || research can be measured and concludes that competence is' measured both by what techniques are standard in practice and by what sources judges look to in supporting their decisions. Because many legal materials" are increasingly available only online, and because judges are showing a greater willingness to rely on non-legal information available on the web, the Article concludes that a lawyer cannot competently represent a client without going beyond Westlaw and Lexis and conducting research on the internet. Both attorneys have obviously entered into a secret pact--complete with hats, handshakes and cryptic words--to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that their utter dearth of legal authorities in their briefing would go unnoticed. (1) TABLE OF CONTENTS INTRODUCTION I. ASSESSING COMPEFENT RESEARCH A. MODEL RULES OF PROFESSIONAL CONDUCT B. COURT RULES C. MALPRACTICE AND INEFFECTIVE ASSISTANCE II. A UNIFIED STANDARD A. STANDARD RESEARCH TECHNIQUES B. PROVIDING ADEQUATE SUPPORT FOR THE RESULT BEING ADVOCATED CONCLUSION INTRODUCTION No lawyer wants to be the subject of public ridicule in a judicial opinion, especially for something as basic as legal research. Yet in this age of increasingly available information, many lawyers do find themselves subject to public embarrassment or worse for failing to adequately perform the building blocks of law practice--legal research and analysis. (2) How do lawyers find themselves in this position? And how can they avoid it? There is little question that locating relevant legal authority and evaluating it are fundamental skills every lawyer should possess. (3) The American Bar Association has reflected this in the Model Rules of Professional Conduct. (4) Research is an essential part of any type of law practice. In law schools across the country, students are instructed in the fundamentals of legal research as a part of the required first-year curriculum. (5) Research texts abound, focusing on the various sources of primary and secondary legal authority and methodologies for accessing the vast amounts of material available to legal researchers. (6) There is also general agreement that the availability of information through electronic media has changed the landscape of legal research. (7) The widespread use of Westlaw and Lexis has led to the expectation that they will be used, at the very least, for updating and locating the most recent authority. (8) A growing number of websites provide free and easy access to voluminous amounts of legal authority. (9) Courts and other governmental entities are posting information directly to the web. (10) Judges throughout the country are increasingly citing to information found on the web. (11) Indeed, some scholars have speculated that the increased availability of information on the internet is leading to a change in the very nature of legal authority. (12) The rapid growth in citations to controversial sources such as the unpublished opinions of courts, Wikipedia, and legal blogs appears to support this contention. (13) In spite of the widespread consensus on the importance of research, (14) and the voluminous attention to how to do it well, there has been relatively little analysis devoted to what courts mean when they chastise a lawyer for inadequate research. How much research is enough? …