A few years ago, I met with my law firm’s manager to discuss research products and services. I asked if we had hard copies of the state and federal civil rules handbooks. “No, we do not.” Next, I asked about the Arizona Revised Statutes. “No… we don’t have those either.” I knew what the next answer was going to be, but I nonetheless asked anyway. “Is there any chance we have the Arizona Digest?” Of course not. But my firm manager assured me that we didn’t actually need any of those things, because they were already included in our Westlaw subscription.
I looked at the firm manager. He stared back at me. After a moment, I realized that this wasn’t some sort of tense stand-off about my desire to spend a bunch of the firm’s money on a bunch of dusty old books. He genuinely believed the electronic versions were sufficient for our needs, and I got the impression that he viewed them as superior to physical books. And who could blame him? E-readers like Amazon’s Kindle are very popular, most legal research is done on computers these days, and nearly every industry is moving away from physical media toward electronic media.
However, there are situations where physical media is still superior, and litigation is one of those rare areas where having a physical book can be useful. I recounted an incident from 10 years ago, when I was sweltering through a hearing in the Old Courthouse in downtown Phoenix. I don’t know if the air conditioner was broken or merely insufficient, or whether there even was an air conditioner (there had to be, right?), but I do remember pulling out my cell phone to look up a case that someone mentioned. No dice. My phone didn’t have a signal. Because I was in a so-called “dead zone,” I was unable to use Westlaw, or even Google. I was limited to what I had with me, either in my briefcase or in my head. And I remembered that incident. After that, every time I had a hearing in the Old Courthouse, I always brought hard copies of the rule book and any relevant authorities. The same for any hearing scheduled in a basement, rural area or any other place where cell phone service might be questionable.
As soon as I finished that story, I launched into another, only this time it was me who was using a cell phone, and I was sitting second chair at an evidentiary hearing. For some reason that now escapes me, we needed to see the Arizona Revised Jury Instructions, commonly known as the RAJIs. I pulled up the correct instruction on my phone and was in the process of reading it when the first-chair attorney, a senior partner in my firm, put his hand over my screen and gently pushed my phone down into my lap. Without taking his eyes off the proceedings, he whispered, “judges don’t like to see people playing on their phones in court.” He slid the blue RAJI book over to me. “Use this instead,” he said. I looked up, and the judge was indeed staring directly at me. Lesson learned. When attorneys look at their phones in the middle of a hearing, a judge could reasonably conclude that they are checking their emails, texting a friend, or reading the news. Letting the judge see me browse through the easily identifiable RAJI binder demonstrated that I was engaged with the proceedings and was working on something related to the case. It also allowed the senior partner to devote his full concentration to the hearing.
To his credit, my firm manager understood what I was saying and agreed to get some hard copy rule books and a copy of the statute books for the office. Then he saw the price of the Arizona Digest, a collection of approximately 85 hardbound books which group cases by topic, with each topic being referred to as a “Key Number.” As of the time of writing this article, the Digest retails on the Thomson Reuters website for the low, low price of $20,000. “Do we need this?” he asked, closely followed by, “Surely you don’t take dozens of books to court with you?” And he’s right, I don’t intend to cart the entire Digest to court, nor could I think of an occasion where I took even a single volume of the Digest into a courtroom. But even though the Digest must kill half a forest to print, and the full set costs more than my undergraduate tuition, in my humble opinion these particular books are worth the cost. I thought about it for a moment and then decided that for this one, seeing is believing.
“Okay, let me show you why the online version isn’t a substitute for the print version,” I said as I turned around to log into Westlaw. “Look,” I explained as I navigated to the Digest. “We’ll use this section on Eminent Domain as an example.” It probably sounded like I chose that topic at random, but in fact I chose it because I happen to own exactly one volume of the Digest. I have no idea where it came from or how it got mixed in with my other law books, and one volume of the Digest isn’t very useful on its own, especially since I’ve worked on exactly one eminent domain case in my entire legal career. But whatever the provenance of this one volume, I’ve held onto it ever since I noticed it on my bookcase one day. I flipped it open to the same section. The manager looked at the print version, then the electronic version, and I could tell he was thinking, “they’re exactly the same.” And they are.
I went on to describe a hypothetical situation where an associate attorney had been asked to research this particular issue. “Now watch,” I said. I scrolled down to the end of the Westlaw entry, then hit the button to pull up the next section. There was a pause for a few seconds while my computer loaded the next webpage, which turned out to be a Key Number with no associated Arizona cases. “Nothing there,” I said, and went on to the next section, which was also blank. I did this a few more times, both forwards and backwards, to show him that there did not appear to be any other Arizona cases on this or similar topics. I asked, “can we agree that, according to Westlaw, these appear to be the only Arizona cases on this issue?” He nodded. I spun my chair around to pick up the book. The entry we just looked at was there, but instead of being followed by a blank page, the book instead listed an entire swath of Key Numbers for which there were no Arizona cases, then printed the next Key Number which had an entry. And that entry contained some relevant cases. As did the Key Number after that. I went back to the original page and flipped backwards. Again, the Digest listed the range of Key Numbers for which there were no Arizona cases, before displaying other, similar topics with more relevant cases.
I explained, “when using the Digest, most people will look at the entry they are interested in, and then they’ll also look at the topics surrounding that entry to see if there are any published cases on closely related topics. When you use the online version, it loads pages one-by-one, and each page takes a few seconds. For most people, after they’ve loaded four or five pages without results, they will conclude that they have identified all the relevant cases. But they haven’t. Sometimes the case you need to see is 10, 20, or even 50 Key Numbers away from the topic you started at. In contrast, when using the book, it’s easy to flip forwards and backwards to make sure you have identified every relevant case.” I looked at my manager. “When I go into court, I want to know the case law backwards, forwards, inside out and back again. I do not want to get blindsided by some case that I’ve never heard of. When I do my research in the print version of the Digest, I feel significantly more confident about my preparation.” I could tell the manager understood my point, but was still reluctant to spend a small fortune on what is essentially a dying technology. He pointed out that Westlaw allows users to see a pdf file of the actual book pages, but I pointed out that it still loads the pages one at a time, with each page of the Digest having its own pdf file. It still takes forever to use effectively, and most people won’t load page after page “just to make sure.”
Litigation is one of those rare areas where physical media can be superior to electronic media. Do I want to spend $20,000 on the Digest and lug an unwieldly rule book to every court hearing? No. But I prefer doing those things to taking the risk of being surprised at a hearing, frantically trying to look stuff up on my cell phone, and waving my arms around the Old Courthouse as if trying to summon the law to appear before me. I especially don’t want to do all that only to glance across the aisle and see opposing counsel carefully keeping his face blank as he calmly opens a book.