Thursday, May 5, 2011

The Myth and the Madness of Cost Effective Lexis and Westlaw Research Training

An Alternative title to this post might be “Vendor Sourcing: The Digital Edition.” Like the print issues outlined in my post of February 17th, "Vendor Sourcing: Thinking the Unthinkable...", this post will examine how Lexis and Westlaw pricing strategies have shifted substantial administrative burdens onto their law firm customers which not only drive up administrative costs but have a perversely negative impact on the practice of law.

It’s that time of year again. All across the country academic and firm librarians are flocking to “bridge the gap” programs where they engage in their annual “hand wringing ritual” while trying to develop the right formula for preparing associates to perform cost effective online research in the “real world.” Since most law firms have a unique menu of “included” content, unique pricing plans and unique billing policies for the identical content – academic librarians are faced with the impossible challenge of training students for a universe in which there is likely 100% inconsistency in the pricing and billing policies across the firms where they will be summer associates.

Cost Effective Legal Research Training has become the “Bleak House” of every lawyer training program. It is unsustainably complex, groaning under the weight of its unending convolutions and permutations. A "doom loop" of confusion, errors and omissions.

The inspiration for this post occurred while reading the discussion on brain function and "information overload" in Nicholas Carr's bestseller “The Shallows.” The proverbial “light bulb” suddenly lit up in my brain.

I submit for your consideration and debate, the possible truth of the following axioms:

1. Cost effective research training is a hopeless exercise. Think Prometheus - no matter how much you try to develop a set of cost effective rules, there are simply too many price points, too many exceptions to any rule, and too much transience in pricing. New complications will grow back tomorrow. There is no “still point” in this turning world.
2. Cost effective legal research training is counter-productive. Since there are an infinite number of invisible variables and undisclosed price variations, a lawyer attempting to conduct “cost effective” research is distracted from focusing on substantive legal research.
3. Subscribing to the myth of cost effective research training keeps the focus off the true culprits and keeps us from demanding a real solutions.There is probably no other disbursement that confounds and perplexes law firm partners or causes more embarrassment when posted on a client bill than online research charges. Partners blame librarians for providing insufficient research training, librarians blame associates for not absorbing cost effective research parameters, and associates blame their law schools for failing to prepare them to practice in the real world. Let’s all pivot in unison at point at the true culprits: Lexis and Westlaw.

1. Why Cost Effective Online Research Can Not Be Taught

Between them, Lexis and Westlaw have over 100,000 separately priced data files. Each of these 100,000 files has at least 5 different price points associated with it, including: hourly, transactional, cite checking, find and print, document printing, line printing and image printing. Some files have special charges if they generate reports or have an expandable table of contents. Then overlay this toxic brew with the pricing variations generated by “flat rate” contracts which trigger a special discount for some but not all content. This requires an associate to engage in an additional computation to account for a “firm specific” discount off of the undisclosed price points.

Do the Math: We have been expecting associates to be able to predict and control of costs of a system that involves about half a million undisclosed, possible price points.

The Madness Exposed. Handing an associate a Lexis or Westlaw password and asking them to be “cost effective,” is like handing someone a credit card and sending them into a store in which none of the merchandise is priced and then berating them when the bill comes in exceeding your budget. No consumer affairs department would allow a retailer to perpetrate this kind of thing on the public. How is it that almost every law firm in the US has put up with this for the past 3 decades?

2. Why cost effective research training is counter-productive.

The obsession with being “cost effective” distracts the associate from focusing on the real goal -- finding the right answer. Here comes the brain theory. Effective legal research requires deep focus and concentration yet… “the myth of cost effective research” requires an associate to engage half of their attention on a collateral and competing analysis of factors which have nothing to do with the substance of the law. (Am I in hourly or transactional mode? Is this content included or excluded? Should I print or read online? Should I execute a new search or will that cost too much? Have I selected the cheapest file? Is it cheaper to print by the line or print a page  or print a document or should I email the results to myself?)

What about getting a good result for a client? Let me cut to the chase. The truly sinister part of the obsession with “cost effective legal research” training is that it subverts and derails the real purpose of online research: getting to the legal precedents and factual data that impact advocacy for the client. Associates who take the “cost effective gospel” to heart are often paralyzed and confused. They prefer to “Google for precedents” or engage in other outlandish inefficiencies to avoid using the premium research tools altogether.

3. Subscribing to the myth of cost effective research training keeps the focus off the true culprits and keeps us from demanding real solutions.

The bottom line: If Lexis and Westlaw really cared about cost effective legal research they would have developed simplified and transparent billing systems.

I have participated in countless librarian panels and advisory groups sponsored by both Lexis and Westlaw over the past 25 years and we have delivered a consistent demand for simplified and transparent billing systems. Instead of responding to this demand, Lexis and Westlaw have stood back and let us expend countless hours on hopeless training initiatives which were doomed from the start.

Lexis and Westlaw have the power but not the will to make their very complex billing systems open and transparent. When you go to select a file they could display the cost, but they do not. When you are online conducting a research session they could run a ticker showing how much you session has cost, but they do not. They could have a limited number of price points, but they do not.

Killing the Golden Goose.

I do not dispute the there is special value in being able to search databases with the breadth and editorial quality provided by Lexis and Westlaw. An executive at Westlaw recently told me that Westlaw now contains over 2 billion documents, (6 billion if you include public records). It is truly awesome to be able to execute a search across thousands of data sources and get a virtually instantaneous result. I still value the precision and control offered by fielded searching, proximity connectors and Boolean Logic which is not available from the “googlzied” search alternatives.

Premium content combined with premium editorial enhancements is something that clients might be willing to pay for if the costs could be calibrated to value delivered. I do not begrudge Lexis and Westlaw a fair return for their investment, but after 30 years the unchecked expansion in complexity, their billing systems have reached an unsustainable tipping point. They have in effect killed the “golden goose” of cost recovery or at least put it on "life support."

One clearly unintended consequence of escalating costs and complexity has been to expand the ranks of partners and clients who currently refuse to pay for something that if rationally priced would be demanded as a justifiable cost delivering both value and efficiency.

When Lexis and Westlaw deliver simplified and rational billing systems we could actually develop cost effective legal research methods and classes that  could prepare associates to perform cost effective research  while remaining focused on the real goal: delivering the best result to their client.