With the advent of the fourth industrial revolution, various online and digital legal databases have been developed and integrated into law promising to assist legal practitioners by providing faster, more relevant, more accurate and more authorative research results to support or refute a legal argument or claim.
Online and digital legal databases primarily use two types of search methods, that is the Boolean search, with its terms and connectors, and Free Text, Natural Language Processing Searches, which is based on algorithms coded to provide documents with matching key words and phrases as entered into the search engine. Studies have shown that online and digital legal research has proved to be all that it promises, with a study conducted using Casetext CARA AI, legal practitioners were able to complete their legal research 24.5% faster, with 21% more accuracy and with 4.4 times less searches than would normally be required. (National Legal Research Group Inc, 2018/2019)
Although legal research can be completed faster, more accurately and within less time and with less searches by using digital legal database search engines with enigmatic algorithms, digital legal research requires a certain skill and experience in the legal databases used to ensure maximum benefits and avoid irrelevant, outdated results.
Certain dangers arise in allowing algorithms to dictate the results of a legal search, defining the legal documents, opinion, reports or case law it deems relevant to the legal question asked. (Gallacher, 2015)
Algorithms are written by coders and/or developers with little, if any, legal knowledge or understanding of a legal practitioners’ legal research needs. (Gallacher, 2015) This is exacerbated by the fact that legal practitioners and coder/developers speak different languages and think in different ways and from different perspectives, thus there is no guarantee that the algorithm has been coded to adequately read and understand the research question as phrased and conceptualized by the legal practitioner. Both full text and Boolean search algorithms are based on the assumption that all users of the algorithm will foresee and use the exact same words and phrases as they appear in relevant legal documents, case law and opinions. However, given judicial differences, legalese, jargon, missed words or imprecise language uses, synonyms, metaphors and figurative speech, this assumption cannot safely be relied on. (Berring, 1986)
Further difficultly arises where implicit reference is made to a key legal concept, especially where the concept is abstract. This is often seen with reported case law and legal opinions as authors and judges like to make use of metaphorical and figurative figures of speech, with a legal concept or idea being expressed without a practical word or phrases, which means that it is difficult to phrase the research question in such a manner to exactly match corresponding words and phrases in relevant documents. (Plessis, 2007) (Berring, 1986)
It should be remembered, “ Digital Searching is Literal Searching” . (Plessis, 2007) The algorithms on which the Boolean or free text searching is based has been codified with exactitudes in mind. This means that research results will only be shown where they exactly match the words or phrases that have been entered into the search engine. Where a word is misspelled or erroneously omitted, the search engine will only provide information and documents that have the same misspelling or missing word, which ultimately means certain case law, legislation, legal opinion or reports will be excluded from the search results, unbeknownst to the legal practitioner conducting the search. (Gallacher, 2015)
Apart from the problems presented by the algorithm on which the Boolean and free text search engines are based, an additional problem is presented by the vast body and collection of legal sources and information embodied in the legal databases. Online, digital researching on a legal database may result in a huge body of results that are disorganized and unreliable. (Plessis, 2007) The mere fact that information is presented online or is available digitally does not guarantee its currency, accuracy, relevance or validity. (Plessis, 2007) Nor is it possible for a legal practitioner to thoroughly work through each search result to confirm its correctness, authority or importance. Where there is no alternative means to check search results, relevant documents will be missed, irrelevant documents will be included resulting in time and energy spent fruitlessly and ultimately meaning that a legal practitioner will be living with existential doubt in respect of his or her legal opinions, drafts and arguments presented in court. (Gallacher, 2015) (Plessis, 2007). The less detailed or characterized a search becomes, the less subtle and supported legal arguments will be. (Gallacher, 2015)
In addition to the difficulties presented by the algorithms of digital, online legal database searches and the vast body of knowledge they regurgitate, costs involved in utilizing the legal database may serve to disadvantage smaller or sole practitioner firms given the subscription fees charged for utilizing the services. Even where a database is offered free of charge, cost implications still arise in regard to users being charged for time spent online or for the number of documents viewed or downloaded. (Plessis, 2007)
In conclusion it is clear that although online, digital research on legal databases provide faster, more accurate, more relevant search results, a certain skill is required by the legal researcher to reap all of the promised benefits. One requires a legal practitioner with suitable legal research methods and skills that are appropriate in finding online, digital information hidden in vast legal databases with knowledge of manipulating search syntaxes to narrow or broaden search results or to rephrase a search question where necessary, as more frequently than not, a single search will be insufficient and will multiple searches with slight variances be required to ensure the best possible search results are obtained. (Plessis, 2007) Additionally, the legal researcher must have meticulous conceptual analysis ability to properly guide and inform searches to effectively deal with the abstract notions and variety in legal language that exists between various jurisdictions and the effect that minor errors may have on search results, whilst also have having information and knowledge management skills to categorize search results and provide organized knowledge bases on which informed decisions regarding a clients legal matter and claim can be made. (Berring, 1986) (Plessis, 2007)
How important is legal research in your practice, who is responsible for the search and ensuring relevancy, accuracy and validity? Provide your opinion on the need and importance of legal research, whether by legal firms, big or small private corporates or individuals, by completing a 3 question legal research survey – https://www.surveymonkey.com/r/YKVFLQ3
Kristi Erasmus
