A couple of weeks ago, Jason Wilson’s rethinc.k blog featured a two-part series of posts entitled On WestlawNext, WestSearch, and Haters: A Brief Interview with Mike Dahn of Thomson Reuters. Although Wilson’s interview focused on questions concerning the WestlawNext search algorithm, Dahn made a few comments that touched on pricing, prompting me to write a responsive post addressing: (1) the cost of retrieving secondary source materials by citation on WestlawNext; and (2) the non-availability of subscripton pricing for many of those secondary sources (particularly the ones included as part of the ResultsPlus plan on Westlaw).
Dahn has “responded” to the first issue raised in my post in a follow-up post at rethinc.k:
To understand actual pricing differences, it’s necessary to examine the totality of transactions rather than individual transactions, and the cost of out-of-contract charges will be especially important. …Lisa says that it’s much more expensive to retrieve an ALR article in WestlawNext than in Westlaw Classic, but it depends how you retrieve it. When we look at our server logs, it is extremely rare for researchers to type in a citation to retrieve an ALR—much more likely that they’ll search for one. If ALR is outside of your subscription plan and you’re paying retail, the cost of an ALR citation retrieval for something specific, like an ALR on sex-plus discrimination claims, will be almost twice in WestlawNext what it costs in Westlaw Classic—however, the more common scenario of searching for an ALR on sex-plus discrimination would cost a firm three times more in Westlaw Classic than it would in WestlawNext.
With that example, am I claiming that WestlawNext is three times less expensive than Westlaw Classic? No, of course not. It’s not very useful to look at individual transactions in isolation. I could easily list a dozen research scenarios where the retail pricing is dramatically less in WestlawNext and another dozen where the retail pricing is dramatically more. For customers who care about retail pricing differences at all (only matters when going outside your subscription plan or when using our retail pricing structure as a basis for determining costs for client charges—in other words, not relevant to most Westlaw users most of the time), I’d encourage them to look at the totality of hourly and/or transactional charges within and across research sessions.
We’ve recently had the managing partner of an Am Law 200 firm tell us that, since subscribing to WestlawNext, they’re now turning research projects around in one tenth the time. Undoubtedly, if you were to take selected pieces of that firm’s WestlawNext research sessions and compare them with selected pieces of their prior research sessions in Westlaw Classic, you could find instances where the retail charges were higher in WestlawNext, but it’s the totality of the transactions that matter more. We now have 52% of Am Law 100 firms subscribing to WestlawNext, and the way they have tended to analyze these issues prior to subscribing is by running a trial with a subset of attorneys and then asking two questions: (1) are our out-of-contract costs up or down significantly when comparing this group’s usage to previous projects or control groups? And (2) are the in-contract price allocations for client cost recovery up or down significantly when comparing this group’s usage to previous projects or control groups using historical discount rates?
The first question is the more important one. …[U]sing a trial group of attorneys and looking at the totality of costs and charges over many research sessions is the right way to approach this, as opposed to homing in on specific transaction cost differences and then guessing how it will play out.
Dahn’s response falls short in a number of respects.
First, Dahn simply ignored the fact that the content that is part of the ResultsPlus Westlaw plan subscription is simply unavailable in a comparable plan on WestlawNext.
Second, I did not say that it’s more expensive to “retrieve an ALR article in WestlawNext than in Westlaw Classic.” This makes it sound like my criticism applies only to a specific type of secondary source. In fact, I noted that it costs 75% more to retrieve any “Premium State and Speciality” secondary source document, and 91% more to retrieve any “Premium National” secondary source document, by citation on WestlawNext than on Westlaw.
Third, Dahn’s response actually contradicts the position he espoused in the original rethinc.k interviews. There, Dahn said:
Since WestlawNext aggregates multiple content sets under a single low search price, researchers should be more likely to browse content beyond cases and statutes—which is exactly what we see in our usage logs. In WestlawNext, secondary source usage as a percentage of total usage is up 50% over the ratios we see in Westlaw Classic. We think that’s a very good thing for researchers.
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.
Now, however, Dahn contends that “[w]hen we look at our server logs, it is extremely rare for researchers to type in a citation to retrieve an ALR—much more likely that they’ll search for one.” Notice that Dahn did not say that it’s rare for a researcher to retrieve a secondary source by linking to it from the WestlawNext search results. Indeed, we can assume that it’s common to retrieve a secondary source by linking to it from the WestlawNext search results because secondary source usage is much higher in WestlawNext than in Westlaw.
If a secondary source is not within a user’s subscription plan, when the user retrieves a section from that source by linking to it from a WestlawNext search result, the user is charged a per-document fee, which (as noted above) is significantly higher for many of the secondary sources that are most valuable to practitioners. As I noted in my last post, while it makes sense for Thomson Reuters to achieve its goal of recouping its R&D costs to develop WestSearch (the WestlawNext search algorithm) by increasing the cost of subscription plans, it makes no sense to increase the cost of retrieving a document by citation.
Dahn’s response to that point shows where Thomson Reuters’ real sympathies lie. He says: “For customers who care about retail pricing differences at all (only matters when going outside your subscription plan. …—in other words, not relevant to most Westlaw users most of the time).” He also references the fact that 52% of Am Law 100 firms now subscribe to WestlawNext. Of course, it makes sense that large firms—the only customers who really matter to Thomson Reuters—would generally have broad subscription plans that include many secondary sources. But for solos and small firms—in other words, the vast majority of lawyers in this country*—who (I strongly suspect) generally have much more limited subscription plans, retail pricing does matter. ResultsPlus (in which the first click on any materials outside a user’s subscription plan that display to the right of the regular search results is “free”) helped even the playing field for Westlaw subscribers, but it’s not available in WestlawNext. WestlawNext’s pricing structure for document retrieval by citation is as regressive a burden on those firms as Herman Cain’s 9-9-9 tax plan is on the poor.
*As of 2000 (the most recent year for which the ABA has published statistics), 70% of private practitioners were either in solo practice or employed in firms of 10 attorneys or fewer.