My response to rethinc.k series on WestlawNext, WestSearch, and Haters

This week, Jason Wilson’s excellent rethinc.k blog features a two–part series of posts entitled On WestlawNext, WestSearch, and Haters: A Brief Interview with Mike Dahn of Thomson Reuters. Wilson’s interview focused on questions concerning the WestlawNext search algorithm.

I’ve always conceded that, for the most part, WestlawNext is superior to Westlaw. However, I’ve been outspoken in my criticism of WestlawNext’s pricing (does that make me a “hater”?). One of Dahn’s comments in this new interview has led me to revisit this issue.

Dahn says:

As a librarian, I always encouraged both students and associates to leverage secondary sources in their research – the right secondary source can literally save hours of time, and that time savings is a cost savings to clients. When I first came to West, I tried to promote the use of secondary sources within Westlaw, and our first project to accomplish that in a big way was ResultsPlus. With it, we saw a significant boost in secondary source usage, but WestlawNext takes it to a whole new level, making sure that relevant secondary sources are not just suggested on the side, but made an integral part of the main search result.

In addition, if you want to browse content like ALR or jury verdicts in Westlaw Classic, and they’re not included in your subscription plan, you must pay an out-of-plan cost to search them before you can browse anything—and you’ll have to try this with database after database. In WestlawNext, ALL searching is included within subscription plans (even if the underlying content is not), and we show more of a document preview in WestlawNext than we do in Westlaw Classic, so customers can browse previews of content outside their subscription plan all day long without incurring extra charges. This not only encourages browsing, but it tends to reduce out-of-plan costs . . . . [W]ith WestlawNext you can search repeatedly and browse content previews all you want, and you only pay for the out-of-plan document you click on. This will almost always cost much less than what it would have cost to search and browse in Westlaw Classic. And in WestlawNext, any search that turns up nothing costs you nothing (in terms of incremental charges), but in Westlaw Classic, if your search results in no relevant documents, you still pay an out-of-contract cost for the search.

These comments fail to address two critical aspects of the Westlaw Classic v. WestlawNext analysis: (1) the true cost of using out-of-plan secondary sources on WestlawNext; and (2) pricing for the valuable content that is included in ResultsPlus.

The true cost of accessing out-of-plan secondary sources on WestlawNext

To be fair, I omitted from the above quote Dahn’s statement that “I heard from a large law firm librarian the other day who said her out-of-plan costs were down 67% in WestlawNext compared with Westlaw Classic.” However, a comment from one large-firm librarian is not an accurate reflection of the true costs of accessing out-of-plan resources (including secondary sources) on WestlawNext. Because, after all, while it’s great to be able to browse document previews, we all know that—just as you would never cite a case after reading a headnote instead of the case itself—the important thing is the document, not the document preview. In this regard,

[o]f course, WN search results may alert legal researchers to issues they would otherwise overlook. But they need not start with a WN search to remedy this deficiency. Secondary sources in a law library appear more likely than WN searches to save legal researchers time, and their clients unnecessary search costs, as long as researchers have ready access to a law library, and know how to effectively use the sources or receive instruction. At “retail,” transactional rates, a WN search costs $60, and then $42 to view a section of a “premium state [or] speciality title.” (TR Legal, WestlawNext Pricing Guide for Commercial Plans (Feb. 2010)) WN search results may include a larger collection of relevant secondary sources. But you may incur unnecessary cost to run even one search on WN, and view several documents, at least if you can gain the needed context from a treatise or legal encyclopedia in your institution’s law library. Moreover, it will cost almost twice as much in WN than in WC to view “speciality title” sections. (TR Legal, Westlaw Pricing Guide For Private Price Plans (Apr. 2010)).

* * *Suppose you are a California attorney. Anticipating criminal law as the likely context, you could start with Witkin & Epstein, Cal. Criminal Law (3d ed. 2000). Using WN or WC, you could browse the table of contents to find the relevant discussion:

Chapter XIV. Criminal Trial – X. RIGHT TO AND SELECTION OF JURY – A. Right to Jury Trial – 4. Waiver of Right. – h. [§ 459] Effect of Waiver on Retrial.

WN users can still access the table of contents of Cal. Criminal Law and other secondary sources. But it will cost them more to do so. Under a private plan’s “retail,” transactional rate, it costs $24 to retrieve Cal. Criminal Law § 459 from WC; however, it costs $42, or almost twice as much, to retrieve this section from WN. This difference in cost has significant consequences for charges to clients and cost recovery, because the difference will have iterations every time WN users rely on WN’s print-based features. Thus Cal. Criminal Law § 459 cites to People v Solis, 66 Cal.App.4th 62, 77 Cal.Rptr.2d 570 (1998). The case would lead you to another helpful secondary source:

Although there are no published opinions in California specifically addressing whether a jury trial waiver remains in effect for a subsequent retrial of the same case, the contention has been considered and rejected in many other state and federal courts. (United States v. Groth (6th Cir.1982) 682 F.2d 578; United States v. Lee, supra, 539 F.2d 606, 610; People v. Mixon (1994) 271, 111. App.3d 999, 208 Ill.Dec. 385, 387, 649 N.E.2d 441, 443; People v. Hamm (1980) 100 Mich. App. 429, 298 N.W.2d 896, 898; State v. Di Frisco (1990) 118 N.J. 253, 571 A.2d 914, 930; see also Annot., Waiver of Right to Trial by Jury as Affecting Right to Trial by Jury on 573-573 Subsequent Trial of Same Case in Federal Court (1984) 66 A.L.R.Fed 859, 869, § 7 and cases cited.)” (77 Cal.Rptr.2d 570, 572-73).

(Links omitted)

It costs $24 to retrieve the ALR document from WC, but $46 to retrieve it from WN. And if the ALR led to other secondary sources, the cost difference repeats itself.

The WestSearch Straitjacket For Legal Research—Thinking Beyond The Keyword: Part I. Although Dahn criticizes the fact that the author of this post is anonymous, the facts contained in the paragraphs quoted above are undeniable.

While I continue to believe that Thomson Reuters should have absorbed the cost of developing WestSearch (the WestlawNext algorithm) as part of its R&D budget, since the company is as intent on cost-recovery as it urges its customers to be, it makes sense to reflect those costs in increased rates for subscription plans (which encourage searching within one’s plan). However, WestSearch has no impact on what it takes to retrieve a document by citation. Why, then, does it cost 75% more to retrieve a “Premium State and Speciality” secondary source document, and 91% more to retrieve a “Premium National” secondary source document, by citation on WestlawNext than on Westlaw?

There is also plenty of anecdotal information to counter Dahn’s single positive anecdote about out-of-plan savings with WestlawNext. For example, from WestlawNext: Pros and Cons and General Comments from Law Librarians (summary of comments posted to the American Association of Law Librarians listserv):

• Way too expensive.

* * *

• When we research an issue, it isn’t unusual for an attorney to scan 40 or 50 cases at a time to get the total picture – the WLN pricing structure penalizes this kind of exhaustive research by charging for each result viewed, while the WL Classic model supports it.* * *
• Dislike. It is very expensive and our ability to bill back suffered as an overall percentage of recovery because with two systems, usage stayed the same but the bill got bigger.

From How widespread is WestlawNext? (summarizing comments about WestlawNext posted on Northern California Association of Law Libraries (NOCALL) listserv):

Though honestly we haven’t embraced it completely and probably won’t until West tells us they are pulling the plug on classic. I think it is a good product. I like the $60.00 search and the left-hand screen that guides you to your hits. The biggest issue is the pricing per document. Those clicks just add up.

The Non-Availability of Subscripton Pricing for ResultsPlus Content

Since I find ResultsPlus to be an important part of my Westlaw subscription, my previous posts about WestlawNext included painstaking analysis of the availability of a comparable plan on WestlawNext. To cut to the chase, there isn’t one that even comes close. (Rather than re-post my earlier analyses, I refer you to My WestlawNext Upgrade Negotiations: Proof that West Isn’t Interested in the Solo Market and Westlaw Reps Don’t Know their A$$es From their Elbows When it Comes to WestlawNext Packages and Pricing.)

Combining my analysis with Dahn’s recent comments reveals is that, while WestlawNext may have achieved the (laudatory) goal of increasing the use of secondary sources, it is also achieving the (laudatory only from the perspective of TR and its shareholders) goal of increasing out-of-plan charges for the use of those sources.

One final point: Mike notes that there has been a lot of “positive Twitter commentary” about WestlawNext. I suspect that the vast majority of that commentary is from law students—in other words, people who (1) have little or no real-world research experience with Westlaw or WestlawNext; and (2) do not pay to use WestlawNext, and therefore have no idea of the charges they would incur for their research in the real world.