Anyone who tracks federal legislation is familiar with the CQ brand.  By contrast to cable news –CQ offers old fashioned sober Walter Cronkite style reporting focused on the nuances of federal  legislation, policy and lobbying. I was lucky enough to get an invite to the book launch party which featured a panel of the book’s contributors .

Panelists: Bryan Monroe, Fran Sesno and Ellen Shearer

According to CQ’s “President ‘Paul McHale  “CQ is in the truth business.” Congressional Quarterly was founded in 1945 by Nelson Poynter  who recognized that “the federal government will never set up an adequate agency to check on itself.” CQ  was created to keep government accountable and transparent.

I have never thought that the truth was completely obvious. And certainly the entire legal profession is built on a  search for the truth. Corporations spend millions of dollars and hire the best lawyers to argue for their version of the truth– so truth is not always as apparent as we would like it to be. Twitter has become a heaving sea of partisan and often looney swill. Journalists are no longer the gate keepers and much of what we have come to know as cable “ news” is  a live and unedited free-for-all where guests can get away with false statements without being challenged. One of the “Truth Counts” panelists even pointed out that  cable stations such a CNN confuse their audiences by having panels which combine news reporters an opinion commentators. CNN is blurring the line between fact and opinion!

Truth Counts is a fairly compact book– 167 pages supported by 15 pages of footnotes. Chapters  discuss how changes in technology, the economics of media, the growth of tribalism and algorithms have  exacerbated the challenge of recognizing reliable information. The first chapter of the book starts by deconstructing Senator Daniel Patrick Moynihan’s  now over-used  line “everyone is entitled to their own opinion but not to his own facts.”   The next time you hear it consider the following: people are also “entitled to select their own facts and doing so is a prerequisite of logic and argumentation.”

The Fake News Checklist: The book recommends that consumers develop a news checklist to help them spot fake news.

  • Don’t share or retweet stories unless you know and trust the source. If you don’t know  the  organization which created the content, do research to find out more background, such as who funds the site and who advertises there
  • Use Fact checking sites such as Politifact to see if the organization or site has a reputation for bad reporting
  • Look at the particulars of a story. Is there a date and a byline? These are indicators of legitimate news stories.
  • Pay attention to ads— pop up ads and sensational headlines are a red flag
  • Read laterally. As you read open new tabs and  search for additional sources which validate or dispute the facts in the story.

I would of course add to this list: hire a librarian. we live and breathe content quality. One of the most valuable things I learned in getting my MLS was the series of factors a professional librarian  uses to assess the quality of any resources. What is the track record of the publisher? How often is it updated? Does it provide accurate references to primary sources?……

Truth Counts  will be supplemented with Podcasts and other digital  conversations to assess truth issues ahead of the fall elections.

 

 

If you are at the Special Libraries Association Conference in Baltimore next week, I will be speaking on the following panels sponsored by Lucidea:

SLA Convention Location:

SLA Conference (Baltimore Convention Center) June 11 – 13. Link: https://www.sla.org/attend/sla-2018-annual-conference-2/

  1. Hot Topic Session: Don’t Just be Integrated: Be Integral.  9:00 am – 10:00 am – Room: 330

This panel on embedding and practice alignment of and services moderated by Stephen Abraham.

2) Hot Topic Session follow on

How to Go Beyond Integration to Become Integral:  Lucidea’s Hot Topics Panelists Offer Specifics: 12:30 pm – 1:20 pm, Room: Theater (in the Exhibit Hall)

I will join Stephen Abraham and other panelists

 3) Meet the Authors:

Lucidea Booth #621

Jean O’Grady, author of Dewey B Strategic 2017 Blog-o-zine

Monday, June 11: Book signing (2:00 p.m. – 3:00 p.m.)

Stan Garfield, author of Proven Practices for Promoting a Knowledge Management Program

Monday, June 11: Book signing during the Opening Reception (5:30 p.m. – 7:00 p.m.)

Tuesday, June 12: Book signing after his presentation (10:00 – 12:30 p.m.)

Stephen Abram, author of Succeeding in the World of Special Librarianship

Tuesday, June 12: Book signing during afternoon networking break (2:30 p.m. – 4:00 p.m.)

Wednesday, June 13: Book signing (10:30 a.m. – 12:00 p.m.)

For the past few years LexisNexis has been taking an increasingly combative stance in contract negotiations with their customers by tying a growing number of products together. It is a rather sad commentary that Lexis appears to  view their flagship legal research product Lexis Advance as a sinking ship which must be held afloat by their other product lines — mostly products which Lexis did not develop but acquired over the past few years. Are Lex Machina, Law 360, Ravel and Intelligize really  commercial pontoons keeping Lexis Advance afloat?  Perhaps most troubling is that Lexis Nexis  has a virtual monopoly on legal news. They have acquired this dominance through acquisition of Law 360 and through  exclusive sales alliances with American lawyer, New York Times and the Wall Street Journal.   This means that no law firm can purchase a corporate license for the Wall Street Journal without a subscription to Lexis Advance. This means that no ALM 200 law firm can get  access to the numerous  ALM news sources including the American Lawyer magazine, and such iconic local legal news sources as the New York Law Journal unless they purchase Lexis Advance.  Ironically the very law firms who help ALM create one of its most valuable offerings: the ALM 100 and ALM 200 rankings are not able to get access to the surveys unless they subscribe to… drum roll please…. Lexis Advance!

The Law Librarians Revolt  Today The American Association of Law Libraries *  sent a “cease and desist” letter to Mike Walsh, CEO of Lexis Nexis objecting to the Lexis bundling of unrelated  products. This practice has the effect of requiring law firms to purchase products which they don’t need or don’t want in order to be able to purchase products they do want.  It should be a surprise to no one that since 2007, law firms have been trying to operate with “flat budgets.” During this same period exciting new specialty products have emerged incorporating AI and analytics. Lexis Nexis owns some of these great new products. Instead of letting their customers select a curated mix of products based on their needs – LexisNexis has engaged in increasing “desperate”  tying tactics. They finally “pushed the product bundling envelope” too far into anti-trust territory. In addition to the legal issues raised by their practices, it’s just plain bad business.    And it  also appears to be a public admission that Lexis Advance can’t compete in the legal research market as a stand alone offering. (* I am a member of the AALL Board and participated in the decision to take action against LexisNexis.)

 

Restricting Access to Books – The Last Straw

Earlier this year LexisNexis added a new and egregious twist to their contract negotiations. If you don’t have a Lexis Advance contract you can’t purchase LexisNexis/ Matthew Bender books. This was the last straw for law library directors who have to manage budgets and need to be able to select the right mix of products to support many practice groups.. Budgets be damned!… Lexis wants to dictate not negotiate. Complaints to the American Association of Law Libraries Committee on Relations with Information Vendors (CRIV) skyrocketed.  Let’s consider the irony here. LexisNexis is admitting that their classic treatises such as Colliers on Bankruptcy and Chisum on Patents are more valuable to their customers than all of LexisNexis. Lexis  the true pioneer of online legal research — which beat the then dominant West Publishing into the full text online legal research market  in the 1970’s- is now clinging to their treatises to keep their online product alive. Does this signal anything other than pure desperation on Lexis’ part?

Market Dominance – The Legal Test

One of the legal tests for anti-trust claims is to examine the share of the market. While it is true that there are competitors to some of the Matthew Bender treatises, I took a look at some citation history last week. If there is no reasonable substitute and I would argue that for at least two of their treatises – there is no reasonable substitute – then they exercising unfair market dominance in requiring customers to purchase Lexis Advance in order to purchase key legal treatises.

Federal Court Citations to  Collier on Bankrupcty:

  • Collier on Bankruptcy (Lexis Nexis)  – cited in 3,860 cases
  • Ginsberg & Martin on Bankruptcy (Wolters Kluwer)  – 7 cases
  • Norton Bankruptcy Law & Practice  (Thomson Reuters) – cited in 141 cases

Federal Court Citations to Chisum on Patents 

  • Chisum  on Patents (Lexis Nexis) cited in 999 cases
  • Harmon on Patents ( Bloomberg) cited in  133 cases

When Lexis says  that “Chisum on Patents is recognized as the leading authority on U.S. patent law.” as they do in promotional materials  this is not mere puffery. The citation counts above suggest that a lawyer really could not practice bankruptcy or patent law effectively without  access to Colliers or Chisum. So I can’t help but wonder aloud if the iconic status of these two treatises might provide the stake that can be driven into the heart of the new  Lexis “strong arm” strategy.

Here is the AALL Briefing to members:

LETTER TO LEXISNEXIS

 

Today, in response to member concerns James P. Fieweger, partner at Michael Best and Friedrich LLP, sent a letter on behalf of AALL to LexisNexis CEO Mike Walsh requesting the company “cease its recently enacted policy of tying access to its electronic and print publication products to the purchase of a license to its Lexis Advance search product.”

 

The letter states that:

 

. . . [i]t is evident that LexisNexis has elected to leverage the demand for certain products and publications to extract purchases of its Advance search product. Such conduct is anticompetitive and likely prohibited by law. Equally as important to AALL, this new policy is detrimental to its members and the law firms they serve.

 

It also has put LexisNexis at odds with standards AALL has promulgated for its members and publishing professionals. The AALL Guide to Fair Business Practices for Legal Publishers describes standards for the business practices of publishers that most directly affect librarians and other legal information consumers. . . .

 

SITUATIONAL BACKGROUND

AALL’s Committee on Relations with Information Vendors (CRIV), in partnership with the Executive Board, has been working to address this issue since 2017. CRIV has received a number of requests for advocacy from members after their attempts to address the LexisNexis sales policy directly were not resolved. In response, CRIV representatives attempted to engage in a dialogue with LexisNexis representatives throughout 2017 and early 2018, which failed to get a response to questions regarding the new policy. In April 2018, CRIV requested action from the AALL Executive Board, and the issue was discussed in the executive session. In that session, a group of board members were assigned to gather information and facts regarding the CRIV request. In an effort to remedy the situation, the Executive Board elected to retain counsel.

 

SUPPORT FOR VENDOR RELATIONS

New editions of the AALL Guide to Fair Business Practices for Legal Publishers and the AALL Principles & Practices for Licensing Electronic Resources are now available on AALLNET. These publications offer guidance and best practices for legal publishers in providing services and products to law librarians, attorneys, and other legal information consumers. This includes fair business practices regarding: communications, disclosure policies, sales policies, customer service, product quality, and licensing agreements. Additionally, CRIV accepts requests for assistance from members with questions or concerns regarding a particular publisher.

 

Today Lex Machina is announcing the release of a unique litigation analytics module on trade secrets. This is the second time in a year that Lex Machina has used machine learning to  identify a unique and valuable subset of cases for with there is no “Nature of Suite” code in the Pacer system.  Owen Byrd the company’s General Counsel and Chief Evangelist, provided me with a demo of the product. Byrd stated that ” trade secrets” analytics was the most requested addition to the platform. After taking an informal poll of some big law information professionals, I would describe their reaction as a collective “sign of relief.” The new module will include over 9,600 trade secrets  cases pending in federal court since 2009, including  cases filed under the 2016  Defense of Trade Secrets Act (DTSA). According to Byrd trade secrets has become as important as any other area of intellectual property in protecting a companies intellectual assets. Companies need to protect heir processes, formula’s and client lists as much as they need to protect their trademarks and patents. Byrd also pointed out that there is often an overlap between employment and trade secrets since issues often arise from the behavior of employees.

Controversies such as trade secrets for which there is no nature of suit code in the Pacer system have been virtually invisible to researchers. It was virtually impossible to aggregate a specific data set of this type. Last year Lex Machina pioneered the use of natural language processing to cull a reliable subset of commercial cases – another high value controversy type which lacks an NOS code. They used NLP again to crawl all post 2009 pleadings in Pacer to identify the trade secret data. “This is a big deal,” according to Jeremy Sullivan, Manager of Competitive Intelligence & Analytics at DLA Piper… To my knowledge there is no other bulletproof resource for zeroing in on trade secrets litigation data.”

With the launch of its trade secret module, Lex Machina has uncovered some interesting insights within the data including:

  • The Central District of California sees the most trade secret cases (7%), followed by the Southern District of New York (5%) and the District of Illinois (5%).
  • Top law firms retained in trade secret cases include firms that specialize in labor and employment law, as many trade secret cases involve former employees.
  • More than 1,350 cases with DTSA claims have been filed during the two years since it was enacted on May 11, 2016; only 11 of the 550+ currently active Article III district judges have evaluated DTSA claims on contested motions or presided over the issue at trial
  • 71% of trade secret cases that resolve at trial are won by claimants whereas 29% are won by claim defendants

 

Timing of Trade Secret Cases in Central District of California

 The Insights and Analytics

The trade secrets module will provide all the standard insights on judges, parties, law firm and courts which can be used for client pitches and litigation strategy. Case timing, motion metrics damages will include new tags which are specific to “trade secrets” issues.

Some of the new tags are:

  • Case tag- Defend Trade Secrets Act
  • Damages actual/lost profits, reasonable royalty, punitive/willfulness damages
  • Finding- State Law Trade Secret Misappropriation (DTSA Trade Secret Misappropriation
  • Other Findings: Ownership validity, Failure to identify trade secret, failure to maintain secrecy, readily ascertainable
  • Defenses: Independent development
  • Remedies: Granted and denied permanent injunction preliminary injunction and TRO

 

Lex Machina Trade Secrets resolutions

 

The Competition Given the increasing importance of trade secrets, it is surprising that there have been so few new products addressing this issue. Last year, following the enactment of the Defense of Trade, Wolters Kluwer released Trade Secrets Advisor which provides practical guidance as well as  statutory and regulatory updates. Westlaw, Lexis and Bloomberg Law also provide general practice materials and treatises on trade secrets. Since Bloomberg recently announced the ability to allow customers to search complaints – their docket product could be tested for identifying “trade secret” complaints… as in.. You can find out something.. about trade secret litigation but not deep analytics.. So at this point , Bloomberg Law they may be the competitor most likely to develop analytics for trade secrets litigation based on today’s product landscape.

Trade Secret Webcast

For more information about Lex Machina’s newest practice area, please register here  for the Legal Analytics for Trade Secret Litigation webcast (May 31, 11:00 PDT/2:00pm EDT). Lex Machina’s Owen Byrd and Rachel Bailey will discuss trends and insights for Trade Secret litigation in federal court, and give viewers a peek into Lex Machina’s new practice area capabilities.

 

I have the honor of being the Chairperson of the 2018 Gillard Lecture which is sponsored by the St Alumni  of . John’s University Division of Library and Information Science.  I will be introducing this year’s speaker, Brian Kuhn, the Founder and Co-Leader of the IBM Watson Legal. Brian is responsible for defining the intersection of legal artificial intelligence and blockchain for law for IBM– two of the hottest issues in legal tech.

This years lecture will take place at St. John’s NYC Campus on Astor Place at 6 pm on May 31st. The event is free but pre-registration is required. Click this link to register.

 

Today Courtroom Insight, Daubert Tracker and Expert Witness Profiler  are releasing the  results of a new survey which was “developed to better understand commonly used expert witness research and retention techniques among litigation professionals.” Every law firm with a litigation practice is aware of the pain points associated with identifying, researching and validating experts.

The nationwide survey was conducted by email in late 2017 and early 2018.  Thousands of litigation professionals, including attorneys, law librarians and paralegals, were invited to complete the survey, with 580 actual respondents.  Although advanced technology solutions have been developed for legal research, ediscovery and case management; expert witness research is still a feral and largely untamed workflow. There is no shortage of vendors hawking a “magic bullet” solution – but the survey below indicates that the market is Continue Reading Surprise -Your Expert Witness Has a Rapsheet – New Survey Examines the Sorry State of Expert Research Workflow in Law Firms

This week Lex Machina added Remedies Analytics to their platform. Lawyers can now investigate the trends on grant and deny rates for permanent injunctions. Preliminary injunctions and temporary restraining orders. Grant/deny rates can be analyzed for specific judges and districts for the types of litigation currently covered by Lex Machina. These include antitrust. Commercial, copyright, employment. Patent, securities and trademark. In addition, the new data will provide insights into the timing for grant or denial of these remedies for specific judges and districts. According to Lex Machina’s  General Counsel and Chief Evangelist, Owen Byrd,   Lex Machina is continually enhancing the product based on customer demands and remedies was the most recent response to customer needs.

Lex Machina Remedies Timing
Lex Machina Remedies

The  Data About the Data  Lex Machina shows the power of the data by inserting macro trends extracted from their product into the press release. According to the press release 27,500 of 1 million+ federal district court cases involves orders for permanent or temporary injunctions or TROs. Overall 88% of injections on the merits are granted and 125 are denied. However, the regard deny rates overall vary for specific types of cases such as trademark and labor.

 

Special remedies. The Lex Machina analytics platform also includes remedies data for specific types of litigation. Employment cases include remedies for reinstatement and promotion; antitrust remedies cover divestiture; commercial remedies include replevin and specific performance and trademark remedies include “termination of a mark.”

All of the Lex Machina data includes a wide range of filters for case types, tags and timing options which can be applied to develop custom insights. Read the full press release here.

Tom Wolfe, the “founding father” of ” the New Journalism” died yesterday.  I can’t remember a time when Wolfe, t was not my favorite writer. I have read all of his books from the Kandy Kolored Tangerine Flake Streamline Baby (1965) to The Kingdom of Speech (2016), … as well as  every article I could chase down. In the early 1980’s I started to compile the ultimate Tom Wolfe bibliography.  I confess, it is a project I did not complete, but I had boxes of index cards and a primitive software called Biblio-file. I remember the disappointment of tracking down the archive of his early writings at the defunct New York Herald Tribune. The librarian at the Queens Borough Public Library reported that although they still had the  Herald archive, the Tom Wolfe “clipping” folder was missing.

After  meeting Wolfe at a lecture and explaining my bibliography project, I sent him a letter asking for help tracking down his works which had appeared in lesser known publications. Instead of getting a form letter from his agent I received something that was more like a work of art from the author.

I guess it’s time to get my Tom Wolfe “art works” framed. So sorry to see him go!

 

I wrote about the launch of Gavelytics in October 2017 which offered judicial analytics for two of the largest California county courts: Los Angeles and Riverside. They recently added data for San Francisco County. The number one  analytics solution demanded  by respondents to my annual Dewey B Strategic Start Stop Survey is a comprehensive 50 state court docket and analytics product. Well the 50 state solution is still a pipe dream, but the folks at Gavelytics have continue to  use AI and machine learning to build out an analytics solution for California lawyers who litigate in county courts. Rick Merrill the Founder and CEO of Gavelytics, described Gavelytics as being a product “developed by lawyers for lawyers,” and designed to address the fact that most lawyers have very little insight into the behavior of state court judges.

The Use Cases Continue Reading Gavelytics Expands California Judicial Analytics with Rulings Research Capability and adds Arbitrator Archive

I will be speaking at these upcoming events:

 Driving Adoption of AI Enabled Research Tools and How the New Technology Will Affect the Role of the Information Professional, SLA New York Chapter, May 8, 2018. Panel also includes Steve Lastres, Director of Knowledge Management, Debevoise & Plimpton, Nicole Dupras, Director Legal Research Division at Chase Cost Management, Robyn Rebollo, VP at Chase Cost Management:.

It Takes More than A Dumpster to Build a  Digital Law Library, Webinar , Sponsored by Lucidia. May 16, 2018, 2 pm est.

Knowledge Management: Generating Interest and Adoption, Webinar, Sponsored by International Legal Technology Association, May 22, 2018. Register here  Panel also includes: Steve Lastres, Director of Knowledge Management, Debevoise & Plimpton and Marlene Gebauer, Director of  Knowledge Solutions, Greeberg Traurig.