Tuesday, July 7, 2009

Is Research on Westlaw / Lexis a Necessity in Texas?

A recent article in the Saint Mary's Law Journal “Practitioners Beware: Under Amended TRAP 47, “Unpublished” Memorandum Opinions in Civil Cases are Binding and Research on Westlaw and Lexis is a Necessity” Vol. 40, 2009, discusses the 2003 and 2008 amendments to the Texas Rule of Appellate Procedure (TRAP) 47, which deal with the citation and precedential weight of unpublished and memorandum opinions. Solomon writes:

“The 2003 amendment was seemingly designed to make the law more readily available by prohibiting the issuance of unpublished opinions in civil cases and and authorizing memorandum opinions in place of unpublished opinions. Despite this intention, the 2003 amendment has failed to make the law in civil cases more readily available because the newly created memorandum opinions are only available electronically via Westlaw, Lexis, and the court websites, even though these opinions are designated for publication. Also, the 2008 amendment has now made memorandum opinions issued in civil cases since 2003 fully precedential. As a result, to completely research binding law in civil cases, Texas attorneys must now have access to Westlaw or Lexis because the court websites lack sophisticated search engines necessary to conduct competent legal research.”

“The amendment is flawed because it makes memorandum opinions precedential even though those opinions are only readily available on Westlaw and Lexis. This has occurred in an era when only 60% of attorneys use fee-based online research services (i.e., Westlaw or Lexis) for state case law research.”

Solomon makes a number of recommendations, including “making all opinions readily available on a sophisticated, widely available, and unified website for the Texas courts of appeals.”

As it goes in the state song of Texas, “boldest and grandest, withstanding ev’ry test,” so an accessible, complete website for the courts in Texas seems only right.

(originally posted on Legal Research Plus)