Notes from the Technology Trenches – November, 1998

Elizabeth H. Klampert is the Director of Library Services for the Association of the Bar of the City of New York. Ms. Klampert was formerly a litigator for five years, specializing in professional liability litigation. Before attending law school, she was a corporate librarian for twelve years, holding management positions in libraries in a number of large organizations, including Rainier National Bank in Seattle, Deloitte & Touche, and Merrill Lynch, both in New York. She received both her BA in English and MLS from the University of Washington in Seattle. She received her JD at the Benjamin N. Cardozo School of Law in New York.

(Archived December 15, 1998)





The big news since my last column is not the Microsoft trial going on in Washington (although that is certainly interesting), but the decision handed down by the Second Circuit on November 3rd in the Matthew Bender v. West Publishing Co. (97-7430) case. The court, in upholding Judge Martin’s 1996 decision to allow Matthew Bender and Hyperlaw to include West’s star pagination in their products, had a very different approach than did the Eighth Circuit in its 1986 decision, West Publishing Co. v. Mead Data Central, Inc., 799 F.2d 1291. In that decision, the court ruled that West’s page numbering was copyrightable. West plans to appeal, so the Supreme Court may yet rule on this issue.

Central to the reasoning in Matthew Bender is the Supreme Court’s 1991 decision, Feist Publications Inc. v. Rural Telephone Service Co., 499 U.S. 340. In Feist, the Court rejected the “sweat of the brow” doctrine (requiring a modicum of creativity) and allowed copying from a rural telephone directory. In Matthew Bender, the Second Circuit did not find that the pagination in West’s volumes to involve “even a modicum of creativity,” but instead were the result of chance.

So how does this affect those of us who have relied on West all these years? Here in the Second Circuit, attorneys and legal researchers may find that they have more choice in how they research and cite cases. Challengers to West include not only Lexis-Nexis but also LOIS and VersusLaw, both of which are offering low-priced services via the Web. In fact, the likely impact of this decision, particularly if it is upheld by the Supreme Court, will be to lower research costs.

Another factor to consider is the advent of the uniform citation system that would allow for sequential decision numbers and use paragraph numbers within each decision for pinpoint citations. The ABA Committee reviewing this issue has recommended citation formats. The following is an example of a cite to a federal circuit court of appeals case:

Doe v. Jones, 1998 2Cir 13, para. 2, 33 F.3d 312.

The distinct advantage to this format is that citations would be available immediately, be more precise than current citation form and, most important for publishers, be usable by them in any format. The Matthew Bender decision supports the trend toward uniform citation.

LOIS has recently released its new version of its Web site and currently has broader coverage (i.e., it includes state statutes and regulations) than does VersusLaw which currently covers caselaw only. Both have attractive pricing structures, but so far only VersusLaw allows a “pay per view” option. Stay tuned, I suspect the competition is just beginning.

On an entirely different note, I recently saw a demonstration of a software program called KIDMATE: A Joint Custody Program for Family Law Specialists. The software is used to simplify the often arduous process of scheduling divorcing parents’ time with their children. The creator of this program, Maralyn Facey of Lapin Agile, was featured in The New York Times Circuits’ section on October 22, 1998. Ms. Facey is working with the New York State family courts on setting up the system in this state. Having seen the software in action, I think there are a number of other applications for it besides its original one. For example, one could see it being used in the bankruptcy courts to keep track of the myriad creditors’ issues that arise. In any event, take a look at the Kidmate site to get more information.

I wish everyone a Happy Thanksgiving and, until next time, may your technology treat you well.

Posted in: Notes from the Technology Trenches, Technology Trends