Finding What You’re Looking For

It was fairly common to find me in the early 1980s sitting at the big library table in old Milt Rosenberg’s office with a few stacks of books in front of me.  Trying to find a case on point often began with Corpus Juris Secundum, which separated headnotes by West’s key system. The trick to finding something spectacular was to always check a few key notes before and after the one that should be on point.  Don’t trust whomever categorized the headnotes, but check cases that were close because you never knew what you would find.

But that doesn’t happen anymore. That’s not how one researches law today. Instead, we frame Boolean searches to zero in on precisely what we’re looking for, and nothing more. There’s no leafing through the pages before and after, just because. There’s no way to do so on a computer.

In yet another article about how Boomers hate Millennials because they’re ruining everything, the writer begins with the inane compulsion of the young to be special by imposing their will on their own children.

Take, for instance, the cover story that Time magazine had a few months back about how millennials are raising their children. I didn’t read the article. I couldn’t, because the very first paragraph stopped me cold. Here it is, reproduced in full:

On a playground in San Francisco, 4-year-old Astral Defiance Hayes takes a stick and writes his name in the sand. His twin brother Defy Aster Hayes whizzes around their father.

The fact is, I don’t need to know anything more about how millennials are parenting than that two of them thought it was a great idea to name their twin boys Astral Defiance and Defy Aster.

I mean: Who does that?

Well, sure. So their children will hate them some day for giving them moronic names and have to go through a few million dollars of therapy to get over their PTSD, all so the parents can feel that they’ve done something unique. Special people must do unique things.

But then, the article struck a chord that raised a very different issue, one untethered to sensibilities and sound judgment.

I was sitting just the other day at what we call, here in our office, “the newspaper table.” We call it that because it’s where, since time immemorial, our copies of the daily papers get placed each morning. I was paging through the New York Times when a passing intern paused. “What are you looking for?” she asked.

What was I looking for? “I’m reading the newspaper,” I told her.

“Oh,” she said.

It dawned on me, reading this exchange, the disparate approaches to information gathering that separates the generations, not out of any malice or incompetence, but merely as an approach.  My parents had a newspaper appear at the front door every morning, and read through it. Whatever was in there, they read, or at the very least, saw the headline and, if it was of absolutely no interest, deliberately decided not to read. But they knew it was in there.

That was my experience as well, to a point. I used to get two newspapers delivered to my home. Then one, the New York Times, after Newsday gave up any hope of being a real newspaper. But my Times reading is now done almost exclusively online.  And I read the stories that interest me, because I look for certain subjects. I miss everything else. It’s in there, I supposed, but unlike the hard copy, I no longer leaf through page after page, see articles I would have never expected or anticipated, and say to myself, “this looks interesting.”

Digital native lawyers will never know the joys of sitting at a table surrounded by books, sifting through things they didn’t know they might need to know. They will take pride in their laser-like focus on how quickly and deftly they can find a particular case, and they will never feel badly about missing the dozen others they might have found had they not been so exacting in their search terms.

And they will call me dinosaur or gray beard for bemoaning the law they never know about.  They will explain to me that the problem isn’t that they don’t use books, but that I don’t use computers well enough to be as fabulous at it as them.  If I suggest otherwise, they will inform me that I’m being “condescending,” which would facially defy logic given my experience, but not in a world where the least experienced is the inherent equal of the most experienced.

You know what’s awkward from an elder’s standpoint? Being expected to listen to and appreciate people who haven’t earned that right. Consider, for example, John Lim, a senior at Swarthmore College and, until this past fall, a member of its baseball team. A recent article in the independent student newspaper the Phoenix noted that before Lim left the team, baseball was his life. Yet he quit playing the sport for Swarthmore because he reached this sad conclusion: “I think athletics is really bad for this campus. I really do.” And what, pray tell, has convinced him of this? Why, it’s the unfairness of the athlete-coach dialectic: “[T]he relationship on the field between the player and the coach,” he told the Phoenix, “is very much whatever the coach says, you do.”

Various platitudes run through my head, “an old fool is worse than a young fool” is one I keep repeating to remind myself that kids didn’t invent the concept that experience alone isn’t enough.  And it isn’t. But a smart young person plus experience is going to have far, far more to offer than a smart young person without experience.

Yet, it occurs to me that the nature of the experience young people will gain when they only see, read, learn that which they’re specifically looking for, is not the same experience that we enjoyed. They may accept a baseball coach who tells them they’re doing great, but they refuse to play when the “dialectic” is that you do what the coach says.  After all, why would the coach have any right to tell a player what to do?

And if you happen to go to a law library, the kind where they still have books on shelves, leaf through CJS and see the remnants of caselaw that your Boolean search failed to find. You may be surprised to find that there is an awful lot of law that you want and need, but weren’t looking for.

23 thoughts on “Finding What You’re Looking For

  1. David M.

    Thanks for writing this important post. I hope you don’t mind, but I skipped over the Millennial-bashing part, since I was looking for practical advice. I think your suggestion is really meaningful.

      1. David M.

        Aw. I thought my vacuous dipshit impression was pretty good 🙁

        I tried to add “impact,” but the captcha wouldn’t let me.

  2. REvers

    I miss using the books, for the same reasons you do. I learned an awful lot of the law I know from doing exactly what you describe. There’s also something about having a book in your hot, sweaty hands that adds to the experience.

    But it took a lot of time. If I still had to research that way I’d never be able to handle the caseload I have.

    I do wonder how well that idiot from Swarthmore will cope with having a boss at the fast food joint when he graduates.

    1. SHG Post author

      There’s an adage: “Fast, cheap or good. Pick two.” When managing an ridiculously excessive caseload, quality suffers for lack of time. But then, you realize that you’re constrained to give up quality in order to get it done. The difference is that others, who aren’t under similar time constraints, still give up quality, but don’t realize it. They just do it that way because that’s the way it’s done in the computer age, when mediocrity becomes the bar of acceptable quality.

  3. Edward Wiest

    To this member of the first cohort of lawyers trained in the joys of Boolean search as a supplement–not a replacement–for hitting the books back in the age of Carter, it seems things are getting worse–not better. My observations:

    1. Back when computer research meant going onto the Wexis databases or the digitized versions of the multivolume law treatises, you could always find the little arrows somewhere on the right or left side of the screen enabling one to go to the previous or next note or section. Now, since the modern researcher can get case law free via Google Scholar, either you find the case on point or you don’t–and how many researchers seeking instant gratification will even bother to click the links to footnotes or cited cases in a search for nuances or other ideas? I doubt many do.

    2. To its credit, my kids school often insists students go to the school and public library and physically bring the books they will be relying on a research project to class. When my daughter was given this assignment recently, she went to the library computer “catalog” (the 3 x 5 cards of her parents’ day became museum pieces a decade ago), walked to the shelf to pick up the books with the name of the subject on which she was writing in the title, grabbed them, then left for the checkout desk without leafing through even those books with the same Dewey call number. Shelf surfing (so to speak) is becoming a lost art. Research is becoming like marketing–if it’s not one of the first three items the search engine spits out, it doesn’t exist.

    Tunnel vision is seen as a clinical problem by ophthalmologists. It seems, however, that the Internet is becoming the greatest tool for the promotion of tunnel vision man has yet developed.

    1. JAV

      This post hits hard since I straddled the book and digital divide generationally speaking.

      In college almost 20 years ago now, I loved research. I hit the right memory in my head I can smell the books and the charge I got out of hitting the library and poring through pages, microfilm, and, microfiche so I could find what I needed and make it useful to me. It is incredible what happens when you let a little curiosity drive you outside of what you’re looking for to the surrounding information that supports and explains it. My current work is research intensive, and I have college to thank for the skill to dig through a thicket of manuals, rules, and regulations to learn even the things I didn’t know I needed yet.

      Many of my younger coworkers act like I’m some kind of wizard when I do it, and when I try to explain and show that it’s a skill that can be learned and not just innate, most look pretty lost.

      All I can think of is to try and encourage their curiosity and hope it drives them, and it’s a good feeling those precious few times I see it happen.

  4. Stephen Burch

    There is nothing more humbling, eye opening, and embarrassing than when a partner responds to a draft with case law that he just remembers from experience that I couldn’t find in my research. Having that happen once was more than enough to convince me that simple keyword searches may be a good start, but not nearly enough to say that I researched an issue. That said, Westlaw still has the ability to looks through key numbers in a hierarchical view, see cited cases, etc (which I do now). It is all there. I don’t think the problem is the tool, but the users who believe that a simple keyword search is the same as legal research.

  5. Jorge

    I’m all for book research — I spend plenty of time leafing through LeFave & Israel, or Wright & Miller. But CJS? Never found it to be anything but a waste of time.

    1. SHG Post author

      Yeah, hornbooks are almost like legal research. No wonder you found CJS to be a waste of time. If you really want to save time, just make shit up and pray you’re not the stupidest guy in the room.

        1. SHG Post author

          It’s not researching caselaw. It’s the perfunctory crap used for a quick and dirty answer when someone can’t be bothered to do the hard work of being a good lawyer.

  6. EH

    You can still use key cites if you want. Certainly any smart lawyer will over-search and read extra rather than rely on search rules.

    Other than using key cites and well written practice guides and searching before and after, my own poorly-known tip is this:

    After you have found cases which you think are most relevant, and the most current cases (if any) which cite those cases: Track down the actual briefs which were filed in those cases, and read them. They are often an invaluable source for terms of art, cross-cites, relevant cases, and so on. And they often provide much better factual grounding than the cases themselves, which really helps both to include or distinguish things. Depending on how relevant a particular case is, you can also read all the motions and filings.

    I don’t know many folks who do this. But it is a hugely valuable information source and an excellent way to double-check. As soon as I have identified a few “probably most-relevant cases” I put the search tool aside for a bit and start reading briefs.

    1. SHG Post author

      I find myself wondering whether you do this on purpose or you are really so mind-numbingly clueless about anything outside your very limited experience that you offer your thoughts with completely sincerity, without any grasp of how little you know. Are you vying for a permanent spot in the Dunning-Kruger Hall of Fame? What makes you continue to conclusively prove you have no clue what you’re talking about?

      No, keycites are not the same. Not even close to what I’m talking about. As for reading the briefs in key cases, it’s not exactly a new idea. Just because you don’t that others have been doing it forever doesn’t mean they don’t, just that you don’t know. That said, it’s often not viable, both because it only works with appellate cases (there are a lot of important trial level cases) and practical constraints don’t allow for it.

      1. EH

        Of course I know who reads, or does not read, briefs. Most people don’t.

        I know this because the vast majority of people I talk to on a friendly “you should try this” basis have never tried. And a ton of people I litigate against have obviously never done it, because they don’t know shit about the cases.

        I am not surprised that YOU do it. I am surprised that you think that it’s so obvious as not to need repeating, especially these days where everyone relies on “natural language searching,” a/k/a “Google Knows best.”

  7. Jim Tyre

    Like you, I used paper research when I was a baby lawyer. But I had a special research tool, far better than CJS or whatever. The senior partner of the firm always would take home the paperbound advance sheets whenever they were replaced by the hardbound volumes. As his bedtime reading, he would at least glance through every case, regardless of subject matter, since one never knows when one might find a hidden nugget. I couldn’t begin to count the times when he’d say to me something like “I remember a case from about 15 years ago that talked about [….] and may be useful.” It was a challenge to find the case, since he rarely remembered the name, but he was right almost always. (Of course, one couldn’t rely just on the advance sheets, since they wouldn’t account for whether a higher court had granted review, but you get the idea.)

    Given your passing interest in speech issues, you might appreciate the posthumous award, still an annual thing, named after him by The Writers Guild, a longtime client of his.

    The Paul Selvin Award is a special award presented by the Writers Guild of America. It is to be given “to that member whose script best embodies the spirit of the constitutional and civil rights and liberties which are indispensable to the survival of free writers everywhere and to whose defense Paul Selvin committed his professional life.”

    1. SHG Post author

      I know a few guys who always read the advance sheets, but not as extreme as Paul Selvin. It really is an amazing way to stay atop the law. I wonder how many new lawyers today know what pocket parts are?

  8. Frank

    There’s a lovely clip on youtube from Star Trek that’s appropriate to the occasion but since we can’t post URLs…

  9. Alice Harris

    I had an uncle, a chemical engineer, who often said that a person only finds what he is looking for. He was referring to engineering problems, I think, but the idea has near universal application.

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