Searching Precedent vs. Research

My colleague, David Hobbie, thought I should supplement my earlier posts on searching for precedents and research with what makes a good precedent.

Research is about content.
Precedent is about context.

When conducting research the search is focused around the words in the document. When searching for a precedent the context around the document is generally more important than the words in the documents itself.

Here are some factors in a document’s context that make a good precedent:

  • Relevant to your topic
  • Recent (a more recent document has more value than an older document)
  • Final (drafts have less value)
  • From a similar type of matter
  • For a similar client
  • Endorsed by a person you report to
  • Was successful (a winning brief is better than a losing brief)
  • From the same jurisdiction (a pleading in Mass. will have different needs than one from NY; a mortgage for property in Cal. will have different needs than one in Tenn.)

Looking at this list, few if these factors will be evident merely from the words in the document. And to the extent the words are in the document, they probably appear very few times. For example, in a mortgage, the state of the property may only appear once in the jurisdiction section of the document.

We have successfully been using WestKM for substantive legal conduct. It is a successful tool for conducting research on our internal documents.

For precedent searches, we are looking at West KM Transactional and Real Practice. They both use some intelligent indexing to identify some of the good precedent factors mentioned above and control your search using these factors.

The problem with these tools is they move away from users request for a single text box search, like Google. Although, the tools improve a particular type of search they start creating silos of searches on top of our silos of documents.

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