Here’s something that both sides of the “v.” can agree with. For the last several years Westlaw has been endeavoring to add “trial orders” to its computerized databases. That’s good. We’ve sent them plenty of such orders. It’s infinitely better than the old days, when nobody knew about these opinions.
However, we’ve complained repeatedly about a couple of drawbacks with Westlaw’s treatment of these trial orders to its databases. We’ve been told that, finally, Westlaw is considering changes to fix these problems. Hence this post. The more lawyers – the more firms – who complain to their Westlaw representatives about this, the more likely it will in fact be fixed.
First, for some reason (probably cost, but we can’t see why this can’t be done by computers) Westlaw does not include an pinpoint page citations (“star paging” in WL jargon) in any trial orders. That’s not a problem with the short ones, but some of these trial orders are more than 50 typewritten pages long. As one example (there are many), see Bailey v. Wyeth Inc., 2008 WL 2856146 (N.J. Super. Law Div. July 11, 2008). The wide-ranging Bailey decision was over 60 pages when handed down, yet the WL citation has no way to tell a court what pages, and thus what subject, is relevant to any particular discussion. Thus, even though we ordinarily use WL citations in our briefs (chiefly because, in this day of word counts, they’re shorter), whenever we cite Bailey, we get the Lexis citation. If Lexis can put pagination in trial orders, there’s no good reason why WL can’t, too.
So – either side of the “v.” – if you’d like the convenience of pagination in “trial orders,” call your firm’s Westlaw representative and tell him/her about your preference.
Second, the way Westlaw treats “trial orders” creates a trap for the unwary. For reasons best known to it (that we believe involve pricing), when you search a state “all cases” WL database ([state postal code]-cs-all), you don’t get “all” cases. Specifically, unless you happen to be looking for a favored state (Connecticut, Delaware, and some others), an “all cases” search omits “trial orders”. In order really to look at “all” cases in most states, you have to run two searches: the “all cases” search together with a separate “[state postal code]-trialorders” search (they can be run together separated by a “;”).
Especially because there’s no warning that a Westlaw “all cases” search doesn’t really produce “all” cases from a state, this separate treatment of trial orders sets a trap for the unwary. We’ve made a point of telling everybody here at Dechert about this, but on a number of occasions in this “virtual law firm” world, we’ve encountered draft briefs originating elsewhere that omit trial orders that we happen to know about (including, in one instance, Bailey).
That’s not good. At minimum there needs to be a prominent warning (along the lines of a red flag) generated whenever an “all cases” search is run in a state where “trial orders” are not included in the search. Better yet, there should be a megasearch of some sort that really does combine everything in one package.
But if we want these things to happen, we need to tell Westlaw we want them. So, once again, we recommend that lawyers, on either side of the “v.” make their wants known to their/your Westlaw representatives.
The best thing is, Westlaw is open to changes. This is the time for us to talk to them.