Sunday, October 19, 2008

Caveat LEXIS?

Uh-oh. Look at LEXIS's online version of United States v. Michael, 66 M.J. 78 (C.A.A.F. 2008) (2008 CAAF LEXIS 256). Notice that its synopsis of the case tells us that "BAKER, J., delivered the opinion of the Court, in which EFFRON, C.J., and STUCKY, J., joined. RYAN, J., filed a separate opinion concurring in part and in the result in which ERDMANN , J., joined." (emphasis added). Problem: LEXIS doesn't include the separate opinion, which you can read by looking at the case on CAAF's web site here.

This suggests to me that I've trusted LEXIS entirely too much in the past. It will substantially add to my research and writing time if I have to double check everything I find on LEXIS.

Have others seen similar problems on LEXIS or is this a highly atypical quality control lapse?

I don't have access to WESTLAW, but I'll look at the Military Justice Reporter tomorrow to see if the separate opinion appears there.
Posted by Dwight Sullivan at 11:04 PM

9 comments:

Mike "No Man" Navarre said...

CAAFlog:

There is another possibility. The highly respected CAAF Clerk's Office, no sarcasm there at all because Mr. DeCicco and the rest of the office are truly one of the best, may have forgotten to include the concurring op in their message to LEXIS. If there are any former NMCCA clerks reading, I think they could speak to how LEXIS can be hampered by data issues from the courts.

Mon Oct 20, 07:02:00 AM EDT
Anonymous said...

Judge Ryan's brief concurring opinion is included on the last page of the PDF posted on CAAF's website:

http://www.armfor.uscourts.gov/opinions/2008Term/07-6005.pdf

Mon Oct 20, 08:23:00 AM EDT
SeaLawyer said...

Lexis also can't be trusted for Shephardizing prior to early 1970's. US v. Krawczyk, 15 CMR 255, which still shows as good law on Lexis, partly stands for the proposition that money isn't fungible for the purposes of larceny (claiming if you wrongfully take someone's $5 bill, fully intending to pay them back another $5 bill, you've committed larceny, not wrongful approp.). It was also being taught by NJS that way in 2002.

This is incorrect. US v. Hayes, 25 CMR 131, expressly overrules that portion of Krawczyk, but Krawczyk has over 30 other positive citations based on other parts of the case, one as recent as 1991.

So unless you get lucky and pick 1 or 2 of the 38 that relate to Hayes in your own Shephardization, you'd think that Krawczyk was still good law.

I emailed Lexis to complain, and they replied that anything pre-197x (don't recall exact year, but early 70's) may not have accurate Shephardization. Yet this appears no where on their website and is not commonly known. Now anytime I have an old case, I have to look at every single case citing it instead of relying on Lexis' apparent positive Shephardization.

I wish we'd bring back Westlaw.

Mon Oct 20, 09:17:00 AM EDT
Dew_Process said...

WestLaw is the same, SeaLawyer. I've encountered this before, and at least what WestLaw told me, was that they and Lexis both have a license to use Shephard's data base, which as noted, after the early 70's, is iffy at best.

That being said, having used both for years, WestLaw is far more user friendly.

Mon Oct 20, 06:53:00 PM EDT
Anonymous said...

You can't trust Lexis. I clerked for a federal district court judge and one of his opinions I drafted was on Lexis but they cut out the entire first paragraph. It looks like my Judge does not know how to write (or me if you knew who the clerk was). All efforts to have Lexis correct went nowhere.

I have also found that when it comes to unpub opinions, some may only be on Westlaw and some may only be on Lexis. Not sure why, but I found that to be the case.

Mon Oct 20, 06:58:00 PM EDT
M. T. Hall said...

I prefer Westlaw in large part because of its "portability" - West offers it on a CD-rom that you can load into your PC or laptop and you don't need to get on-line to do basic research. I think its search functions are more user-friendly as well. But I also subscribe to Lexis because it includes "the red books" (which had a lousy digest), unpublished decisions, and military law reviews. If Sirius and XM can merge, why not Westlaw and Lexis? Give us one conglomerated research tool that runs cases back to Truman and that you can use off-line.

Tue Oct 21, 02:37:00 PM EDT
Anonymous said...

Minority voice, but in private practice-we had some horrendous problems with Westlaw billing in the past and went to Lexis as a result. [We have had slightly less horrendous problems with Lexis billing.]

Tue Oct 21, 08:19:00 PM EDT
Mike "No Man" Navarre said...

Anon 2019: You get to the heart of the issue. The Gov't got a sweetheart deal from Lexis and thus . . . On the private sector side I agree with you. More than one partner at my firm has expressed a preference for LEXIS based on billing rates, though none that comment on this blog. Since I am more conversant in LRXIS after 3 tours with the G, I gravitate to it anyway.

Tue Oct 21, 09:00:00 PM EDT
Dew_Process said...

WestLaw's billing can be VERY problematic, that's true and why my office went to a package plan. But, you have to keep on your toes every month.

But, WestLaw has the Redbooks on it as well. I have the Military Justice package which includes Mil Law Reviews, MJ, CMR's etc.

Sat Oct 25, 05:40:00 PM EDT

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