Efficient Electronic Research Strategies for the Sole Practitioner or Small Firm
This article appeared in The True Bill, the newsletter of the North Carolina Bar Association's Criminal Justice Section, vol. 19, no. 1, November 1998.
In 1983, when I entered private practice after ten years of state-government work, it was widely acknowledged that prosecutors could bury an opponent with the research and investigation churned out by their large office staffs and deep pockets. Now, however, as the early economic barriers to computer ownership are eroding, sole criminal-defense practitioners and small firms have unimaginably speedy access to research resources and can begin to balance the scales of justice.
In fact, as this trend continues, failure to make use of electronic research tools in complex cases may eventually be considered a form of malpractice. To make the most of these new research capabilities, however, the defenders of the rights of all of us must be sure to use an efficient electronic research strategy. This article is intended to help you do just that.
Let's examine the steps to getting the job done quickly and effectively, using as an example a first-degree murder case from my criminal-defense practice. In this example, it took me about 48 minutes of on-line research time, plus an hour or so of planning, to obtain the information needed to save the life of my client.
In my office I am not just a sole practitioner, I am a "solo" practitioner. There is no secretary, investigator or paralegal to assist with my practice, though they may be hired as circumstances dictate. The practice is limited to defending people charged with felonies and to appeals of criminal convictions to the North Carolina Court of Appeals. My one nonsalaried "employee," my computer, runs Windows 98 and has one diskette drive and one CD-ROM drive. Electronically, I use Lexis, an on-line research resource giving access to the entire world of law; CD-ROMs from Law Office Information Systems Inc. [hereinafter L.O.I.S.] for North Carolina and United States Supreme Court decisions as well as North Carolina General Statutes and the Administrative Code; and the Institute of Government's North Carolina Crimes: A Guidebook on the Elements of Crime, by Thornburg, (hereinafter UNC-IOG), also on CD-ROM. (It is worth noting that UNC-IOG not only sets out the statutory language for many crimes, it lists the elements separately, along with appellate authorities supporting each element.) However, the basic principles to be outlined here are not limited to these resources but apply to research in Westlaw and other CD-ROM-based systems as well.
The following steps can assist you in using both electronic research systems and the books on your library shelves. You may not need all of these steps for each project and you may not need to follow them in the same order each time, but they do provide a good starting point for your search.
Determine the objectives of your research
The obvious first step in starting a search of any kind is to determine what you need to find. The charge in our example was first-degree murder; the prosecutor had informally announced an intention to seek the death penalty. The facts involved an alleged drug dealer's shooting a customer for failure to pay for the product. The argument expected from the state was that the shooting was done to enhance the dealer's reputation and his ability to collect from others. Analyzing discovery materials, I determined that my objective was to identify the state's legal basis for seeking the death penalty, thwart it and save my client's life, if possible.
A lawyer inexperienced in murder cases could find both the elements of first-degree murder and the citation to the statutory aggravating circumstances to support the death penalty, N.C.G.S. 15A-2000, in UNC-IOG. Reference to the General Statutes in L.O.I.S. led to N.C.G.S. 15A-2000(e)(6) ("pecuniary gain") as the most viable choice available to the state under our facts. Each of these research resources allowed me to highlight material and copy it into my word processor for file notes. I wanted to explore the legal concept of "pecuniary gain" to determine if the facts in this case would support the prosecution's announced goal. Expressing the facts of your case in a sentence can help you identify key words and ideas to aid in the next step.
List key words and phrases
Next, list all the key words and phrases you find in your sentence and think of possible synonyms. If you recall the citation to a case, or, as here, have a statutory reference available [15A-2000(e)(6)], list it, too. Here, I had "pecuniary gain," "collections," "debt," "nonpayment," "enhanced," "reputation," and "homocide," "murder," "manslaughter," "death" or "death penalty," along with "drugs" and "drug dealer." I am sure you could think of even more. Listing all the synonyms for your key words can also lead to fruitful avenues of research.
Determine which sources to search
The third step is to decide which sources of information you wish to search. Before going on-line with electronic research such as Lexis or Westlaw, think about which sources of information will lead you most efficiently and economically to the object of your search. Depending upon the system and billing arrangement you use, you may be charged based on a combination of the type and the number of your inquiries. Do you need general information for filling in your background on the topic? In sources such as Strong's NC Index, NC Digest, Am Jur 2d, CJS and others, you may find additional key words, phrases and citations to specific cases or statutes to add to your list. A periodical index will give you the law review articles available if you want a more specific treatment of a subject. Specialized texts on topics pertinent to your key phrases and words may be useful.
This preparation time will help you focus your search and eliminate irrelevant material. This in turn will shorten the number of your on-line inquiries.
Look at the sources
Fourth, you will want to actually look at the sources you have listed, either in printed publications in your library or on-line. L.O.I.S. can give you access to areas that may be relevant to your search. Look in the L.O.I.S. "books" section for the resources labeled "North Carolina Rules." A quick view of the index and the pertinent section of each publication may help to find new words or phrases useful in your search.
Eliminate material
At this point, you may find it helps to eliminate material not on point with your issue. As a part of this fifth step, you could use your electronic system as a citator to eliminate cases you have found that have been overruled. Depending on the volume of material you have to review, this step could save considerable time. Another way to save time in using the electronic citator is to employ a Boolean operator rather than to enter the full citation. For example, if you wish to see where State v. Miller, a 1972 Court of Appeals case, has been cited, a search with a query that asks for "16 near1 1" will usually bring faster, and sometimes more accurate, results, than would be received by typing "16 N.C. App. 1." In L.O.I.S., "16 near1 1" produced 386 citations within 15 seconds, including the 1973 Supreme Court decision which modified the opinion of the Court of Appeals. The query "16 N.C. App. 1" produced a total of 986 items for the computer to consider, but took 15 minutes to show final results and did not produce any citation to the Supreme Court case State v. Miller, 282 N.C. 633, 194 S.E. 2d 353 (1973), the modifing decision.
Select specific electronic libraries
For my search, I considered that I wanted North Carolina citations and that using L.O.I.S. would be the fastest and least expensive way to get them. But I also wanted to learn what analysis had been used elsewhere to justify the death penalty on the aggravating factor of a crime committed for pecuniary gain, based on the concept of a drug dealer's enhancing his reputation as a debt collector by shooting a nonpaying customer. To obtain that information, I turned to Lexis (Westlaw would also work for this kind of search). My sixth step, then, was to decide upon the specific information "libraries" to be examined within the vast Lexis system. In Lexis, the library that gives access to all jurisdictions in the country is called "OMNI." A timesaving hint is to "stack" your library commands so the system will respond by giving you all the citations on your topic but will list the North Carolina authorities first instead of in alphabetical order by jurisdictions. This can save a lot of page turning and keystrokes. In Lexis you can do this by entering "NC,OMNI" as the command.
Fine tune the request
In my experience, the heart of the succesful electronic research effort lies in step seven, the proper phrasing of your search inquiry or request. This request is generated from the list of words, phrases and citations from the earlier steps. Careful drafting will determine the scope of your inquiry. The broader the request, the more likely you are to find what you really need. But a broadly based inquiry will also give you more irrelevant material to sift through. A too-narrowly drafted inquiry, however, may miss pertinent information.
In our murder-case example, I formed a search request for N.C.G.S. 15A-2000(e)(6) that found 48 North Carolina citations in L.O.I.S. That search system takes you directly to the portion of the opinion where the relevant inquiry phrase or word is found and highlights it. In Lexis, the pertinent inquiry phrases can be found in the context of the opinion by using the command "KWIC," for "key words in context." I narrowed my search in L.O.I.S. by hitting the "ALT F4" keys and typing in the words "drug or controlled substance." This whittled the list of 48 cases found under the statutory citation down to 19.
Often, the phrase you are seeking is not to be found intact within an opinion. If your inquiry doesn't get you usable results, first check the spelling of the words in your request. Then, if all is correct, you can put a Boolean phrase search operator ("near#," "and," "not," "or," etc.) between the words in your inquiry.
For example, you can insert a "near#" Boolean operator between the words. In L.O.I.S., the number next to "near" tells the system to look for the words within that number of lines of each other - "near5" for within five lines, for example. In Lexis a "near5" command tells the system to find words within five words of each other. Be sure you understand the requirements of the system you are using.
Finally, when I also asked Lexis to produce the prior and subsequent history of each relevant citation (using the "AUTOCITE" command), I got a list of pertinent ALR annotations. There, in the midst of my electronic data was the gem my client needed: "Sufficiency of Evidence, for Purposes of Death Penalty, to Establish Statutory Aggravating Circumstance that Murder was Committed for Pecuniary Gain, as Consideration or in Expectation of Receiving Something of Monetary Value, and the Like - Post-Gregg Cases," 66 ALR 4th 417. The index to the article indicated where my key words and phrases were to be found in various sections. The index to the cases cited told me where to find pertinent North Carolina cases used in the article.
To my dismay, I learned that Florida and Arizona cases are cited for the proposition that evidence showing that a drug dealer who murdered in an effort to establish a reputation as an effective collector of debts owed to him was sufficient to submit pecuniary gain as an aggravating circumstance to be considered by the jury in sentencing.
As ominous a discovery as that was, the system had also led me to North Carolina authority for the proposition that seeking to enhance one's reputation as a debt collector was not then considered to be pecuniary gain under the meaning of the North Carolina statute. Conclusion --- effective electronic research.
In other words, a sole practitioner, defending a murder case in which the prosecutor intended to seek the death penalty, was able, with less than one hour of electronic-connection time, to find the authorities needed to persuade the prosecutor that the death penalty was not available under the facts of that case. That's what I call efficient and effective electronic research strategy. The prosecution has had, generally, the advantages of a much larger staff of lawyers, investigators, witness coordinators and the resources of law enforcement agencies and laboratories for the preparation of their cases. The sole practitioner and small law firm have had, generally, fewer economic resources and less manpower with which to defend their clients. The economic realities of court-appointed defense strain those limited resources even further. However, electronic tools are now available at reasonable cost and it is our job to improve our skills in the use of computer systems and electronic research to defend our clients. The stakes are too high for us and for our clients for us to do anything less.
The new technology also gives rise to ethical questions of how to bill for our electronic research. Should you bill for your research and reading time alone or also for the on-line time for the use of Lexis or Westlaw? If you use a CD-ROM for which you paid a fixed fee, is that to be absorbed as a part of your overhead expense or is it to be prorated among your clients? What if you pay a fixed fee to Lexis or Westlaw?
This article was intended to assist you in conducting more effective electronic research and minimizing your time and expense. The ethics of how you bill it is for a different article.