Just the Damn Facts Please

December 1, 2010

[Editor’s Note: this is article is part of a brief series dedicated to fact-specific and pre-trial research frustrations]

Strolling past the John B. West commons here in Eagan, I wonder,  is that his real name?  Sinclair Lewis’ Babbit (another Minnesotan)  used to say, “I may not be any Rockefeller or James J. Shakespeare, but I certainly do know my own mind, and I do keep right on plugging along in the office….”  In fact, John B. is his real name. The “B” is for Briggs.  Check out Robert Jarvis’ profile in the American Journal of Legal History (50 AMJLH 1)

Early in the twentieth century, John B. West developed the topic and KeyNumber System – a digest of American law. Some have challenged the Digest’s relevancy — it’s “literary warrant”  — for the digital age.  Even William Patry, a West author, relegated it to the “crassest form of cattle branding.”  According to Professor Peter Schanck, attorneys  “tend to concentrate more on the facts … than on abstract doctrines. In so doing, they prefer searching descriptive word indexes over topical analyses, and they search the indexes as much for factual terms as for legal concepts.”   (See Peter Custer citing Schanck at 102 LLIBJ 251.) Really? In fact,  Custer noted that his research indicates “an overall preference for using both descriptive word indexes and topical analysis followed by a lesser preference for using the descriptive word index alone, with only a small number preferring to just search using topical analysis.

Well, I may not be any John B. West but I certainly do know my own mind.  I’m a big fan of William Patry but I use the Digest every day.  Ultimately, I think the combined method described by Custer is preferred by Reference Attorneys who know the Digest well.  Many times, searching the topic as it relates to specific facts is critical. But, I wouldn’t give up the Digest.

Consider copyright fair use.  The elements of fair use are well known and easy to cite. But, according to Patry, “Fair use is an issue that is decidedly not capable of generalized application. Fair use is, as the U.S. Supreme Court and the Congress have repeatedly noted, highly “fact-specific,” to be adjudicated only on a “case-by-case basis”” (PATRYFAIR 7:5).  It makes sense, then, for Patry to organize his chapter on the fair use of life stories by case:

  • Toksvig v. Bruce Publishing
  • Eisenschiml v. Fawcett Publications
  • Greenbie v. Noble
  • Holdredge v. Knight Publishing
  • Rosemont Enterprises. v. Random House
  • Estate of Hemingway v. Random House
  • Meeropol v. Nizer
  • Rokeach v. Avco Embassy Pictures
  • Iowa Sate Univeristy Research Foundation v. American Broadcasting Co.
  • Salinger v. Random House
  • New Era Publications Int’l ApS v. Henry Hold & Co.
  • Wright v. Warner Books
  • Norse v. Henry Holt & Co.
  • Nash v. CBS
  • Elvis Presley Enterprises v. Passport Video

The following search for the same subject matter on Westlaw delivers 50 results:

Federal Intellectual Property Law Cases (Copyright): fipc-cs

Initial Search: biography /s fair-use (50 Results)

I have little doubt that most, if not all of Patry’s cases are in the result set or cited within cases of this result set.  But, is reviewing all 50 cases the most efficient means for isolating the important cases?  Instead, try using the topic number for copyrights like this:

Locate: to(99) /p biography /s fair use (19 Results)

The results begin to look more like Patry’s contents.  Patry described the KeyNumbers as insipidly generic. Generic? In this case, maybe, especially in the way we’re using them. It’s an extraordinarily simple edit.  I wouldn’t say, ‘insipid’,’ however.  How might you measure the value of reducing your result set from 50 to 19? The 19 results do not replicate Patry’s list exactly but it very likely represents a shorter path to the important case law on this topic. WestlawNext fares even better.  The Digest is now working behind the scenes as part of WestlawNext’s WestSearch.  Our search for

copyright fair use in biography or life story

delivered all but three of Patry’s cases directly in the result list.

Finally, in keeping with our theme for the week, let’s also consider pre-trial discovery issues.  Discovery is another area where many of our customers require fact-specific results. Quite often, the answer is, there is no answer.  Or, rather, we necessarily resolve ourselves to, ‘is it likely to lead to the discovery of admissible evidence?’  Or, ‘is it unduly burdensome?’ But, what if you’re investigating the burdensomeness of a particular item? Maybe you wouldn’t want to miss a case with your facts.  So, try these searches with topic-number related roots and fact-specific terms:

State Discovery / Procedure: to(307) /p meta-data

Federal Discovery / Procedure: to(170A) /p meta-data