Today, under Gideon v. Wainwright, any criminal defendant who risks at least one year of jail time has free access to defense counsel. But that is not the case for civil litigants and some misdemeanor defendants, many of whom could hardly afford a lawyer and have to represent themselves. They do not have access to counsel, but what is worse is that they do not have fair and effective access to law. America is a common law country, which means that its law largely consists of case decisions. Most lawyers heavily rely on legal search engines like LexisNexis and Westlaw to conduct legal research. Such tools help them efficiently locate cases that address their legal issues. But for pro se litigants who could hardly afford a lawyer, legal research tools like LexisNexis and Westlaw are too expensive and hard to use. Their access to caselaw is significantly impaired compared to professional lawyers. If they are involved in a litigation where the opposing party is represented by a lawyer or if they are prosecuted under conditions that do not guarantee a right to free counsel, then they would have to face the experienced lawyers who have full access to caselaw. This unbalanced access to case law creates unfairness in litigation. But there is a solution: the government should ensure ordinary people’s effective and efficient access to case law by creating a free legal research website that is easy to use for people without a law background.
The Sixth Amendment guarantees a criminal defendant’s right to counsel if the defendant could lose their liberty in the case. This right, however, is not extended to civil cases except in some limited cases involving basic human needs, such as shelter, safety, and child custody. And this right is also not guaranteed in some misdemeanor cases that do not result in jail time. For this reason, a large number of litigants in court have to represent themselves. Undoubtedly, litigation requires some degree of legal knowledge, which pro se litigants do not have easy access to. What are some ways to address this problem?
First, it would be unrealistic for the court to extend the right to counsel to cover all cases. Even under the current law where the right only covers criminal defendants, public defenders nationwide are underfunded and overly burdened by the caseloads. To extend the right to counsel to all litigants would not only easily exhaust the state funding but also endanger effective representation with overworking. Secondly, although public interest organizations like Legal Service Corporation could provide legal services, they cannot offer help to everyone who needs it. It would be ideal if everyone who goes to court is represented by a lawyer, but the high cost and large number of cases simply do not allow that.
Without counsel representation, pro se litigants should at least have the right to familiarize themselves with the specific law that they litigate. Using Google, one can easily find statutes online. For example, the entire New York State statutory law can be found online. However, because the US is a common law country, simply knowing the statutes is not enough for effective litigation. In common law jurisdictions, a significant part of the law consists of prior case decisions. Even if an issue is covered by a statute, the court still relies on cases to interpret that statute. Therefore, without reading relevant cases, knowing the statutes only acquaints one with the tip of the iceberg of the law. Moreover, making caselaw free and accessible to the public is consistent with constitutional values. Under the constitutional due process vagueness doctrine, statutes and criminal law must be clear and not extensive. And caselaw helps clarify the statutes. In addition, some legal issues are not covered in statutes but are defined purely under caselaw. For instance, in Massachusetts, there is a common law offense called “affray.” Although Massachusetts has a criminal code, it does not include affray as an offense. Caselaw not only constitutes parts of the law that statutes do not cover, but also clarifies and defines statutes. That is why providing easy access to caselaw is important for pro se litigants.
Currently, the most common legal research tools for lawyers to get access to caselaw are LexisNexis and Westlaw. But for nonlawyers, they are far from the best tools. First, they are very expensive and they do not provide payment plans for nonlawyer litigants. If you are an individual litigant in New York State, then Westlaw Edge charges you at a minimum of $151.50 per month, which even excludes coverage of other states’ cases and federal cases. If you want access to the full content, you need to pay $260.25 a month. As for Lexis, the starting point is cheaper at $85.00 per month, but you still need to pay $190.00 per month for all the federal materials. Such price and payment methods are designed for lawyers who intend to practice in a long term, not for pro se litigants who could hardly afford a lawyer and only need the tools for only one or two cases. In fact, even some solo practitioners and small firm lawyers could not afford them and practice based on their experience in their fields. For small firm lawyers and solo practitioners, however, they could rely on some other legal research tools that are cheaper than Lexis and West law, such as Casetext and Fastcase. But their payment plans are still designed for lawyers. There is, however, an online free caselaw database open to the public: Caselaw Access Project.
Caselaw Access Project (“CAP”) is a free online caselaw database created by Harvard Law School. One can find almost all published cases there. However, it is not the ideal litigation tool for ordinary people without a law background. First, the cases on CAP are categorized based on jurisdictions and reporters. But pro se litigants need to quickly find cases that are binding and on the right topic and issues. CAP does not provide features that allow the users to narrow down search results based on issues or causes of actions. In this way, users would have to search the precise legal terms under the right jurisdiction and then look into each individual search result to see if they found the right case. Even if they find the right case, pro se litigants likely still would have a hard time identifying which parts they need. Second, CAP provides little to no instruction for laypeople to use the search tool. An ordinary person using CAP could not even tell whether a case is overruled or still good law. CAP could be ideal for legal scholars or lawyers looking for the text of a specific case decision, but it is not user-friendly to pro se litigants.
On the other hand, providing all of the extra features could be too burdensome to Harvard Law School. After all, it is a private entity running a free project. Instead, the government should be responsible for creating a free online legal research tool targeted at nonlawyers. The government should bear the duty to make the law known. Such duty is consistent with the due process requirement of fair notice, which requires that a government agency notifies the parties before enforcing regulations. Similarly, before enforcing the law, the government should try to make the law known to the people with due effort.
Each state and federal government, therefore, should create an online law search tool that allows people’s access to current controlling statutes and case decisions. When designing such tools, the government should provide enough instructions for nonlawyers to help them find the right statutes and right cases. One potential way to do it is to include instructions that guide people to specific issues and topics such as “personal injury,” “prison guard violence,” or “medical malpractice.” Under each topic, it should include frequently brought up sub-issues in plain English such as “dog bite,” “misleading contract,” etc. Finally, once the user gets to the sub-issue, it should show a list of all related statutes and frequently cited binding cases, all briefed in plain English. There could be other ways to do it, but the important thing is for the government to show its due diligence by trying to make the caselaw known. In other words, the government should make its best effort to give pro se litigants a chance to argue the law fairly in court.
A free legal research tool could be costly for the government. But unlike other caselaw database, it does not need to include any overruled case or even some redundant cases decided by the lower court. Its job is not to tell the history of common law, but to display enough cases to give the users an idea of the current caselaw on a specific issue. Moreover, the government has already been implementing an expensive project, prison law libraries, to ensure prisoners’ right of access to the courts. On the other hand, a user-friendly online database not only provides prisoners with an alternative to physical libraries, but is also likely cheaper than setting up libraries in every prison, since all prisons can have access to the same online database. Although many prisons have switched to digital case databases like Fastcase and LexisNexis, one big problem is the difficulty of training inmates to use the tools. As mentioned above, such tools were designed for lawyers, not ordinary people. The new tool, designed for ordinary people, could potentially cut the cost of training. Therefore, overall, creating such tool should not be too burdensome for the government.
It is unfortunate that there are many pro se litigants who cannot secure counsel. They have no legal education, yet they need to know the law to litigate for themselves. They would not be able to do so unless they have a fair access to caselaw, but currently such access is still unavailable. People should have the right to know the law, and the government should actively help them do so. That is why we need a government sponsored free legal research tool that allows ordinary people to find and understand the cases they need.
About the Author: Fengshu Yang is a Chinese international law student interested in public defense. He is considering moving to Canada to practice after graduating from Cornell Law School.
Suggested Citation: Fengshu Yang, Government Sponsored Legal Research Tool That Facilitates Nonlawyers’ Access to Caselaw, Cornell J.L. & Pub. Pol’y, The Issue Spotter, (February 17, 2022), http://jlpp.org/blogzine/government-sponsored-legal-research-tool-that-facilitates-nonlawyers-access-to-caselaw/.