Duopolies, web usability, and legal research instruction

It’s been a rocky year for West’s relationship with law librarians.

First, the company declined to participate in this year’s American Association of Law Libraries Price Index for Legal Publications. This led AALL to return West’s sponsorship check for the 2009 AALL Annual Meeting. For attendees, this decision was somewhat academic, as West still occupied a large space in the Exhibitor Hall and once again hosted a well-attended Customer Appreciation Party.

Shortly after the conference, West issued an email promotion to customers that asked:

Are you on a first name basis with the librarian? If so, chances are, you’re spending too much time at the library. What you need is fast, reliable research you can access right in your office.

Many law librarians felt publicly insulted by West, expressing their outrage on listservs, blogs, Twitter, Facebook and anywhere legal information professionals could be found that week.

Most recently, West released a video of University of California, Berkeley professor and law librarian Bob Berring explaining the advantages of “free market” premium legal databases over free legal information websites run by “volunteers:”

It’s not like legal information is going to the Safeway or to buy food. You’re not buying a packaged thing. If you say I need to find statutes about this, or what’s the administrative regulations on that, or have the courts spoken about this, you have to go find it. And just saying it’s all out there — I mean, the ocean is all out there, but you need a map, and you need a compass, and… you need a GPS system now. You need someone to tell you how to get there. That’s why librarians are even more important now, because they’ve got the GPS system. But you have to be working with organized information. The value added by folks like West, where the information is edited as it goes in, and it’s classified, and the hooks are put in — easy hooks for the people who I think are sloppy researchers just playing around on the tops, really sophisticated hooks for the people who take the time to learn how to really use the system and understand it. You just can’t say enough about those kind of things, because to say to the average person, “Well, it’s all out there, the law is all out there,” well, it’s a big bunch of goo.

Adding value to the goo

Unfortunately, the West/Lexis duopoly doesn’t provide consumers with the expected advantages of a free market economy. Neither vendor uses price as a marketing strategy, and both negotiate electronic database contracts with customers rather than charge a flat rate. Considering that West has increased its own annual profit margin to 30% or higher in recent years, while raising the cost of supplements at a rate far exceeding inflation, prices are hardly being driven by free market trends, making a price war seem unlikely. (This doesn’t mean consumers aren’t hopping mad about the price of legal information. They are.)

Instead, at least in the database market, both companies rely on content and features to market their products. Each July at the AALL Annual Meeting, both Lexis and Westlaw use their exhibitor space to educate attendees about whatever new databases and customer conveniences will be rolled out in the coming months.

I often compare these annual feature introductions to the evolution of automobile engines, thanks to a childhood spent watching my father work on the family cars. At first Dad knew every nook and cranny of our vehicles, and there was little he couldn’t repair himself over the course of a few nights. As we traded in cars for newer models, his job became more difficult as engines became more complex. None of the automakers seemed to consider ease of access when adding new parts to an automobile engine. They were simply slapped on top of the existing ones, making it harder to perform simple tasks, like replacing belts or spark plugs.

Lexis and Westlaw also add new components on top of the old ones. To generalize, Lexis tends to add new features in the form of tabs (think “Total Litigator”) while Westlaw adds them in sidebars (think “Results Plus”), to the point where once clean interfaces are now littered with disparate elements sharing adjacent screen real estate.

Finding fault with filters

In a talk at last year’s Web 2.0 Expo in New York, author Clay Shirky stated that the fundamental information problem is not “information overload,” but “filter failure.” Shirky summarized this position in a recent interview with Yale Law School’s Jason Eiseman:

As I’ve often said, there’s no such thing as information overload. It’s filter failure, right? From the minute we had more books to read than the average literate person could read in a lifetime, which depending on the region you’re talking about happened someplace between the 16th and 19th century, from that moment on we’ve always had information overload. That’s the modern condition. What’s happening, I think, to our sense that we’re suffering acutely from information overload now is that the old professional filters have broken. They’re simply not adequate to contain a world in which anyone can put material out in the public.

Whether or not you agree with Shirky’s assessment, it provides an interesting framework with which to view the Lexis/Westlaw information problem. If the primary legal information within these systems are “a big bunch of goo,” then secondary resources, headnotes, subject-specific organization, and other finding aids are the filters necessary to cope with information overload.

For West’s “Are you on a first name basis with the librarian?” promotion to work, Westlaw has to provide the “fast, reliable research you can access right in your office” that it advertises. Assuming for purposes of this essay that the presence of relevant content isn’t an issue (an assumption with which many will quibble), this means the system’s filters need to provide reliable information quickly.

There’s no question that both West and Lexis provide an abundance of subject-specific organization, particularly for case law. Headnotes, topics, digests, tables of authority, citators and cross-references to secondary resources all go above and beyond what researchers find in most freely available resources. But these add-ons, or filters, are only effective if presented in a usable manner.

For an assignment in one of my legal research classes this semester, I provided a fact pattern and asked students to perform a Natural Language search in Westlaw of American Law Reports to find a relevant annotation. In a class of only 19 students, six of them answered with citations to resources other than ALR, including articles from American Jurisprudence, Am.Jur. Proof of Facts, and Shepards’ Causes of Action. The problem, it turned out, wasn’t that they had searched the wrong database. Every one of them searched ALR correctly, but those six students mistook Westlaw’s Results Plus, placed at the top of a sidebar on the results page, for their actual search results. Filter failure, indeed.

On another assignment, students were expected to find a particular statutory code section using a secondary resource, view the code section, then navigate to the code’s table of contents to browse related sections codified nearby. This proved nearly impossible for most of them, as the code section they accessed loaded in a pop-up window with no sidebar, thus providing no visible link to the table of contents. The problems didn’t stop there. Even once I told them to click the “Maximize” button at the bottom of the pop-up window, which reloads the code section into the main window with a sidebar, upon clicking the TOC link, anyone using Firefox for Windows loaded a blank page. (To resolve this error, you have to right-click on the frame where the TOC should’ve loaded and select “This Frame -> Reload This Frame.”)

While completing another portion of the statutory code assignment in Lexis, nearly half the students in the class became confused because numerous clickable links throughout the system display as plain black text which only appear as links when the user hovers over them. Also, within statutory code sections, the navigation links provided within the case annotation index routinely loaded an error page rather than navigating to the proper section further down the page.

This doesn’t even address basic usability issues such as broken back button functionality, heavy usage of frames, lack of permanent document URLs (Lexis and Westlaw each have external workarounds for this), and reliance on pop-up windows (something blocked by default on most browsers). In addition, Lexis still doesn’t support users accessing the system with Firefox for Mac.

The wide availability of secondary resources, annotated codes, and numerous other value-added content provides a clear advantage for Lexis and Westlaw over free and mid-level legal information services, and that’s why everyone continues to pay their steep prices. But so long as the systems themselves don’t provide usable access, each still suffers from filter failure.

Is there an incentive to improve?

There is evidence that the companies have the expertise to provide a better user experience. West has two electronic versions (one for desktop computers and one for the iPhone) of Black’s Law Dictionary available that offer more intuitive functionality than what’s provided for the same text in Westlaw. Don’t expect a price break, however. The desktop version of Black’s has a list price of $99, while the iPhone version costs $49.99. By comparison, the print version of Black’s Standard Ninth Edition, which likely has substantially higher production costs than the electronic equivalents, carries a list price of $75, meaning iPhone users receive a slightly lower price while desktop users pay even more. Worse still, both electronic versions as well as the content in Westlaw contain the text of the outdated 8th Edition.

Lexis also has an iPhone app, and it’s a free download that requires an existing Lexis password to function. Substantially simplified from its traditional web interface, the user experience is clean and easy to understand. Yet while one can retrieve both primary and secondary documents, as well as Shepardize documents, none of the documents in this interface contain links, only plain citations that must be copied and pasted into the search form to be retrieved.

Of course, the bigger problem with these progressive moves is that they don’t address any of the existing problems in the web interfaces for either product. No one is redesigning the engine, so to speak. These are simply variations of the now traditional roll-out of new features and functionality on top of existing ones that still have the same significant issues.

This is the problem with a duopoly. There aren’t enough producers in the economy to assert significant pressure on either to improve usability. Consumer power is also limited because multi-year contracts prevent easy product substitution, and there’s only one true product substitute available. The producers dictate the competition, and thus far they have dictated a content competition (“The Tabs and Sidebars War”), rather than a usability one — or even a price one.

There are events on the horizon that could impact this stalemate. Bloomberg continues to develop its own legal research product, allegedly designed to be a Westlaw/Lexis competitor. Perhaps this third producer will see value in using price or usability to gain market share. Lewis & Clark law student (and VoxPopuLII author) Robb Shecter recently introduced OregonLaws.org, a free repository of Oregon law that currently features the entire Oregon Revised Statutes and a legal glossary. The site’s simple, logical navigation reflects current web usability norms more accurately than either Lexis or Westlaw, and for a “micro-fee” users can bookmark code sections for quick access and save unlimited “human readable” research trails. And, of course, Google Scholar just added “Legal opinions and journals.” It’s far too early to know if it will become a true player in legal information, but Google always has the potential to be a game changer with anything it does.

What can legal research instructors DO?

Despite the presence of these interesting new projects, consumers can’t expect a quick usability turnaround from Lexis and Westlaw, nor the sudden presence of a competitor with the same depth and breadth of content. History doesn’t support such an expectation, leaving legal research instructors in a precarious position.

Many schools leave Lexis/Westlaw training solely in the hands of the companies’ representatives. While a company rep will be knowledgeable about the system, he will also paint the product in the best possible light for the company, glossing over usability issues and emphasizing new features. After all, law students are future customers, so this instruction is part of a long-term sales pitch.

In order to provide a balanced picture of these systems, legal research instructors need to provide their own Lexis and Westlaw training. This can either be in place of or in addition to what’s provided by company reps, but students need to hear the voice of an experienced researcher who doesn’t rely on either company for a paycheck. Some may see this as an implied institutional endorsement of the high-priced systems, but the reality is most students will end up working with one or both of these systems on a daily basis after graduation. Ignoring this would be an educational disservice. Any sense of endorsement can be addressed through thorough coverage of the usability limitations and a short education on the price realities. Instructors can also discuss the availability of lower priced databases for lawyers who simply want access to primary legal materials.

If the market is going to change, it won’t be because Lexis and Westlaw spontaneously decide to improve products that generate significant profits already. Until then, legal researchers need to be better educated on the limitations of these systems so that their work product isn’t compromised by over-reliance on a duopoly disguised as a free market.

Tom Boone is a reference librarian and adjunct professor at Loyola Law School in Los Angeles. He’s also webmaster and a contributing editor for Henderson Valley Eggs, a “themed information collective” website covering law library issues.

VoxPopuLII is edited by Judith Pratt