RESEARCHING INFORMATION USAGE IN LAW
Those with an interest in exploring how technology has impacted the way legal information is being used have had very little information upon which to base their research.Footnote 1 Since most law was locked up through contractual agreements between courts, reporters, and legal publishers it was difficult to ascertain who was using the electronic databases, how often, and for what purpose. Such information was rarely made available given its commercial sensitivity to the legal publishers. The inception of Legal Information Institutes (LII) has hopefully changed this by manifesting a more open attitude to potential users of legal information. For the LIIs, usually funded as charities, it is a commercial imperative to prove to those who provide funding that the community actively uses the service. Without that information, then funding will – and probably should – cease.
BAILII has consistently promised its users that it will not use any privacy undermining techniques and thus cannot carry out the sort of background analysis that is routinely done by commercial information providers using tools which leave cookies on sites, analyse search patterns, and perform analytical consumer research. This means that a user survey is perhaps the best means (in terms of cost and effectiveness) to gauge information about BAILII's users, even though it is accepted that responses to online surveys are usually relatively low. In early 2012 BAILII posted an invitation on its website encouraging users to complete a survey and 3,274 users responded, a relatively high figure for this kind of research.
BAILII is hosted in the UK and Ireland by the Institute of Advanced Legal Studies (IALS), London and the Law Faculty, University College Cork. BAILII is legally constituted in the UK as a company limited by guarantee and as a charitable trust, supported by a number of major sponsorsFootnote 2 and assisted by many other organisations and individuals.Footnote 3 BAILII celebrated its tenth anniversary in November 2010 and now comprises 90 databases containing over 297,513 searchable documents making up 36 gigabytes of data. Two servers offer parallel data access to provide 99.5% up-time for the system, these being based at the IALS and at Queen's University of Belfast, both accessed via the UK academic network. Usage of BAILII is currently averaging over 44,457 users per week generating over 1,599,204 page requests per week.
WHO USES BAILII
Where They Live and What They Do
The 2012 survey results, although not necessarily reflecting the extent of BAILII's user group internationally or professionally, provide a useful snapshot of who uses BAILII.Footnote 4 78% of the respondents were from the UK and the remaining 22% from elsewhere in Europe, North and South America, Asia, Australasia, and Africa.Footnote 5 57% were directly involved in the legal profession (solicitors, barristers, judges, law librarians, etc.). 27% indicated employment in other professions and businesses that need access to UK/Ireland court and tribunal decisions. Law students and academic lawyers comprised 16% of respondents.Footnote 6 Self-represented litigants and members of the general public comprised the remaining six percent.
BAILII came into being, partially because of a perception that the professional lawyer was unable to access the law of the land at a reasonable cost and that publishers were maximizing profit by fragmenting access to the law. Certainly, with 57% of survey respondents involved with the legal profession, that original need appears to have been met. But it was envisioned early on that BAILII would provide access to the law not just for lawyers, but for ordinary citizens who have no meaningful access to the laws of the land.Footnote 7 In a paper from BIALL to the Library and Information Services Council in 1985, it was noted that “the standards of collections and level of legal reference service in public libraries is so abysmally low (with one or two honourable exceptions) as to be useless.”Footnote 8 The survey results show clearly that BAILII has changed this landscape and multiple sectors of the community are taking advantage of BAILII's resources. Non-lawyer respondents included accountants, journalists, advisors, consultants, voluntary sector workers, civil servants, information officers, human resource managers, educators, law enforcement officers, forensic scientists, social workers, nurses, anthropologists, local authority officers, publishers, etc. It is not surprising that the user base is so wide given that law has entered so many high profile fields in terms of, for example, commercial regulation, human rights, immigration, and employment. What is surprising is that the open access model in legal information still appears to have opponents within the group who control access to judgments, as BAILII is never completely successful in getting the judgments it requires to satisfy the needs of its users.Footnote 9
CONTENT ON BAILII
The breadth and depth of content on BAILII has expanded significantly since its inception. It now hosts the most comprehensive set of British and Irish primary legal materials available for free and in one place on the internet. BAILII offers open access to not only British and Irish case law and legislation, but also European Union case law, Law Commission reports, and other law-related British and Irish material. Some of the documents on BAILII are freely available elsewhere on various government, court and tribunal websites. Uniquely however, BAILII has a large number of Privy Council judgments, Law Commission Reports, England and Wales Courts of Appeal and High Court judgments, older tribunal decisions and court decisions from Northern Ireland, Scotland and the Republic of Ireland that are either not at all available on the internet or are not available for free. BAILII derives its data from a number of sources, relying heavily on direct and indirect feeds by relevant courts, government departments and other organizations. Some of the data comes from existing free-to-air sites and some is based on published and unpublished CD-ROMs. All of the data has been converted into a consistent format to which a generalised set of search and hypertext facilities have been added.
There are limitations to the case law content on BAILII because historically, law reporting in the UK has been a privatised system.Footnote 10 Law reports, until relatively recently, were the property of the publisher, rather than the property of the court or public which means that BAILII has limited access to pre-2000 UK judgments. Through the JISC-supported Open Law project BAILII identified leading cases from the past, for 16 selected subjects.Footnote 11 BAILII then sought permission (and sometimes the cases themselves) from various libraries and publishers to digitize the judgments and now offers access to over 2,380 leading cases searchable by subject. Unfortunately BAILII does not have sufficient resources to add newer cases of note to the leading cases lists, and older materials that have been identified as desirable additions remain problematic in terms of copyright ownership.
BAILII'S SEARCH ENGINE
The ways in which digital information is presented and accessed are evolving at a breakneck pace and patterns of information use within the legal community are in a state of flux.Footnote 12 The BAILII survey reflected the not so surprising fact that comfort levels with search engine technology in general vary greatly both within and without the legal community. Users who expect all search engines to perform like Google are at a distinct disadvantage as the thrust of what Google does actually removes the searcher from the search process.Footnote 13 Google-like search query processing is expected by “digital natives” – that generation born during or after the general introduction of digital technology. It is also often expected by those who have no experience performing legal research in databases such as Westlaw and Lexis, which until fairly recently required careful attention to syntax, field context, truncation, and Boolean operators.Footnote 14 As John Palfrey notes: “The Google-search practice of digital natives translates poorly into searching on Westlaw and LexisNexis most of the time”.Footnote 15
BAILII's search engine, SINO, originated from the AustLII project but has, during its usage by BAILII, been added to and amended by the BAILII team. SINO is suitable for running a legal information database being accessed by large numbers of users, but supported by relatively small technical teams. This is because SINO is very fast both in retrieval and indexing times, easy to interface with, relatively small and easy to understand, is open source and licensed under the GNU General Public Licence and has been in use on a number of major websites answering many millions of requests for well over 10 years and so is robust and reliable.
While these advantages make SINO suitable for BAILII, designing a usable and simple but powerful interface between the user and the core search system is crucial to success of the service. The original interface for BAILII suffered various usability flaws and part of the Open Law project involved carrying out user testing of the interface and implementing improvements accordingly in early 2007. BAILII's current survey project was undertaken with the view of seeing what further improvements could be made within BAILII's limited resources.
SEARCHING CASE LAW ON BAILII
To retrieve a known case on BAILII, you can search by citation and by title.Footnote 16 You can also browse alphabetical title lists and case lists (by court and date). BAILII's case law databases contain only raw judgements without any headnotes, indexing or associated case history. Consequently constructing a search query does not involve the complex legal knowledge often needed for successful searching and navigation in commercial legal databases. Nonetheless BAILII's search engine requires some attention to basic syntax. It has no same sentence or same paragraph operators, but it will process numerical proximity connectors that can effectively focus search results. Users with more advanced skills can take advantage of BAILII's Boolean, truncation and wild card operators. When a judgment cites to a case or other document, such as a Law Commission Report, that is in the BAILII database, there is a hyperlink to the cited material.
You can limit a case law search on BAILII to specific jurisdictions and courts and you can apply date limits.Footnote 17 When a search is complete, the results are presented in a list that the user can sort and re-sort by relevance, jurisdiction, date (oldest last and oldest first) or title. To browse the text of any given judgment returned in a search result, users can either click on the red context arrows which mark-up the case to show where the search terms occur and/or use FIND (alt-F) to search for words or phrases within the case. From the survey comments, it appears another Google-driven habit interferes with search efforts: some users will simply scroll through a large number of hits rather than put in the effort to comprehend the reason their query has returned an unmanageably long list of hits and appropriately refine the search query accordingly.
Keyword text searches on BAILII can be more problematic, especially for the inexperienced user. The 2012 BAILII Survey results contained laments to the effect that “it [the search engine] can never find what I ask for”. This comment reflects a classic misunderstanding on the part of users who fail to realize that their search results give them precisely what they have asked for in their search string which is not necessarily the same thing as what they want. It is the weakness of the query, not as many users presume, primarily the fault of the search engine. That said, certain searches will require somewhat complex query formulation to be successful on BAILII due to the nature of legal research in general and because the database contains only the text of raw judgments. Even a skilled researcher can have difficulty composing a syntactically complex question due to the nature of legal language and concepts. This factor, combined with the fact that BAILII's case law content is not comprehensive, can result in frustrations that strain user tolerance and lead to diminishing returns.
GENERAL USAGE PATTERNS
Users who took the survey were asked how frequently they used BAILII. 42% were “medium users” (several times a month), 32% were “heavy users” (several times a week) and 26% were light users (every now and then). Case law databases containing decisions of the courts and tribunals are the most heavily accessed resource. 89% said they usually turn to BAILII when they know about a case and want to read the judgment. Roughly 50% use BAILII to search for cases relevant to a legal issue and 41% consult BAILII to update their knowledge of the status of cases (whether a case has been cited in a subsequent judgment or decision been issued on appeal). 39% rely on BAILII to keep abreast of the most recent judgments as BAILII is the most up-to-date source for recent judgments which are usually available within hours of receipt. Only 18% of respondents said they use the Legislation databases. No poll was taken to ascertain usage of the secondary sources materials offered on BAILII (including Law Commission Reports; Scottish Law Commission reports, consultation papers, and discussion papers; Northern Ireland Law Reform Committee publications; and Treaties) although several respondents voluntarily mentioned they found these extremely useful.
USER EVALUATIONS
The survey posed a number of questions about what search options were used, how successful users were in finding the cases they wanted, and how user-friendly they found the interface. Overall responses were extremely positive with 61% evaluating BAILII as easy to use, 37% as moderately easy to use, and only two percent as difficult to use. When asked “Do you usually find the case you want?” 70% said almost always and 30% said sometimes. There was no appreciable difference among the various user groups (lawyers, non-lawyers, academics) in how they ranked BAILII's ease of use.
The survey elicited user comments asking the open-ended question: Do you have any difficulty navigating BAILII's website to find what you want, or any general comments on BAILII's website or BAILII itself? This question generated 1,434 responses that were very revealing as to overall attitudes toward BAILII, how much is understood about the nature of BAILII, and usability issues. The comments were overwhelmingly enthusiastic, describing BAILII in superlatives: brilliant, excellent, invaluable, superb, marvellous, fantastic, vital, incredibly useful. Negative comments comprised only a small fraction (2.8%).
Predictably, many suggestions for improving usability involve data enrichment that is beyond BAILII's ability for the most part: expanding the scope of case law coverage (primarily adding older cases), adding headnotes and indexing, and adding citation features (case history, subsequent citations to case, authorities cited in a case). There was also a demand for printable PDF files.Footnote 18 Interestingly enough, these desires mirror the most popular demands for improvement reported in the recent LEXUM survey of the uses of its Supreme Court of Canada decisions website which also revealed that CanLII, BAILII's counterpart in Canada, “tops the market when it comes to accessing primary [Canadian] legal information”.Footnote 19
BAILII has studied the survey comments regarding usability and is in the process of identifying improvements to the interface that can be accomplished within BAILII's existing resources. Perhaps not surprisingly, what BAILII needs most is a “facelift”, so to speak. BAILII is a content-heavy website and it is apparent from the comments that many users do not actually see all of the available BAILII resources, search options, and search help. BAILII aims to make revisions that will visually streamline the website and provide tutorial guidance.
STUDENT USAGE
Given that several major changes were made to BAILII during the Open Law funding project, we were interested in whether that funding – which was specifically directed towards use by students, rather than lawyers – had made the impact which the application for funding had promised. We asked whether lecturers utilized the ability with BAILII to add a link to a teaching document which would take the student directly to a judgment or to a paragraph within a judgment. The majority – 69% – indicated that they did. Representative reasons given for not making these links included: “not responsible for preparation of teaching materials”; “provide written materials in other way so students don't have to link”; prefer to get student to find cases themselves for research purposes; “looking cases up is an important skill for students to learn”; and “hyperlinks are more trouble than they are worth”.
Students were asked if BAILII was their only access to UK law and 72% said no. We also asked whether students went to BAILII because they were told to go there, or whether they went by themselves. 64% say that they took themselves to the BAILII site, indicating that their usage is not simply being pushed by teaching staff; in fact 38% said that BAILII was not generally mentioned during their law courses. The majority of students were heavy (47.3%) and medium users (41.2%) of BAILII. In addition to using BAILII for access to cases, students reported use of Westlaw (66%), Lexis (55%) and court and tribunal websites (40%).
Students reported they found their searches mostly satisfactory in that they found the case they wanted, but – perhaps not surprising if one knows law students and sees them as the perfect exemplars of the Google generation – advanced techniques were rarely used, and only 25% of students bothered to use the limitation by court facility.
As members of the Open Law team who sought funding, carried out the research and implemented the project, it seems to us that the project was generally successful. Our indications were that prior to Open Law the use of BAILII by students was low; it was not readily found or discussed by lecturers, was difficult to use, and generally less user friendly than it could have been. The changes implemented by Open Law appear to have changed that position considerably.
BAILII AS PART OF THE INFORMATION LANDSCAPE
The commercial legal database business model is designed to meet the needs of consumers in the legal sector who can afford the cost. Commercial legal information providers, supported by their subscribers, have vast sums to invest in state of the art programming, editorial enhancements, training, public relations and advertising. Employees of legal practices, government entities and academic institutions that can afford the high cost of access flourish within these “walled gardens” of richly enhanced legal information.Footnote 20 But commercial databases are outside the reach of many legal practitioners who cannot afford the cost. And even putting cost aside, these models do not necessarily address the needs of other consumers, including non-law trained professionals, academia in general and members of the public. The open access model eliminates both price and permission barriers. In the tradition of a public library, BAILII's content is free of charge, open to all, and available worldwide in any location with internet access. BAILII's presence on the internet has thus significantly improved access to UK and Irish case law for jurisdictions both within and without the UK and Ireland and as such, is a unique and readily accessible resource for users of legal information who would otherwise have only very limited access or none at all. The 2012 BAILII survey results demonstrate that (1) lawyers and non-lawyers alike have need and desire for open access to UK/Ireland law and (2) BAILII's content and search utility is manageable for law-trained users and those without legal education. Although some users of BAILII have no other access to UK law, many lawyers, judges, and academics actually have access to commercial legal databases but nonetheless are frequent users of BAILII. One user comments: “I think BAILII is a fantastic resource and research tool which puts the likes of Lexis Nexis and Sweet & Maxwell to shame. Despite subscribing to these I find BAILII is my normal first point of call as it saves a massive amount of time for case searching”. This is especially true of the student respondents; 75% said that BAILII was their first choice over Westlaw and Lexis.
BAILII welcomes organisations and individuals to link to its documents with the caveat that subscriber or pay per view sites make it apparent to users that BAILII content is in fact, free and that the origin of the content is clear. There are 2,974 domains currently linking to BAILII. BAILII is the backbone for many popular commercial publications in the areas of commercial law, employment law, criminal law, human rights law and media law.Footnote 21 A hyperlink to BAILII is stable; the linked document will neither change nor vanish so long as BAILII is alive. Anyone, lawyers and non-lawyers alike, can incorporate hyperlinks to BAILII and its documents when preparing digital information: blogs, email communications, teaching materials, news articles, etc., and URLs for BAILII's documents can be noted in print publications.
FUNDING OPEN ACCESS
BAILII arrived at a time when the law business was doing relatively well; funding from legal aid was accessible, students leaving law school managed to enter practice. The general sense was, that the provision of a legal service to the population was good and might be getting better. Even in those “good times”, though, law was seen as being a too expensive commodity when provided by the private sector. Moving on ten years, we see a considerable change in environment: legal aid is difficult to access; students (and indeed lawyers) are finding the job market problematic; solicitors are under pressure to reduce costs; self-represented litigants are increasing; legal advice centres are expected to provide a high standard of advice but at the same time to operate with low overheads; and there are reductions in funding for national and local governmental departments. If it could be said that in 2000, the primary target user group for BAILII was the lawyer in private practice, this can no longer be the case; the need for an effective and low cost method to access up to date law for all sectors of society has risen with the current economic climate.
Within the legal information landscape, BAILII is becoming more robust in terms of content, links to BAILII are becoming increasingly ubiquitous, and thus BAILII is becoming ever more woven into the fabric of legal information and communication. Nevertheless, BAILII cannot be sustained simply by hard work on the part of its limited staff (one executive director, one systems administrator, one part-time project manager and one occasional consultant), and the oversight of its Trustees (senior members of the judiciary, legal academics, and experienced legal practitioners) alone. BAILII relies on charitable funding to maintain and enhance the content and service it provides and has launched an Appeal for Funds directed towards sets of Chambers and solicitors' firms and welcoming contributions.Footnote 22
Issues open for debate involving BAILII are presented in a 25 September 2011 editorial in the Guardian Footnote 23 and a comment to that editorial posted by Nick Holmes on the UK Human Rights Blog: “Don't Throw BAILII Out with the Bathwater”.Footnote 24 There is some criticism of BAILII for allowing Google to access case citations and titles but not the text of judgments. There are several reasons for this; BAILII needs protection from having its data mined and BAILII has a responsibility to maintain and protect the veracity of its data. In order to continue its funding as a charity, BAILII needs to demonstrate that it is well used and functions as its goals suggest. With regard to protection, if BAILII usage decreases as a result of judgments and other materials being replicated and accesssed on other sites, BAILII will fail and BAILII will fold. With regard to veracity, if it is necessary to remove a judgment from the BAILII database – for example if BAILII has been provided with a copy of a judgment which discloses confidential information such as the name of a child, BAILII has no control over that judgment if it has been harvested by another provider. Things are made more difficult once judgments have been indexed by a search engine. And if the text of a judgment is amended by the judge, the unamended version should not be available in the cache of a search engine.
Respondents to the 2012 BAILII Survey vounteered views regarding the provision and funding of open access law. A fee-paid judge who uses BAILII when sitting in courts with limited resources, and as a practicing solicitor says:
“I find it almost incomprehensible that the UK could find itself without free-to-access case reports, particularly where the number of litigants in person is rising, and they need access to the law, without fee. In days gone by, lawyers only relied on reported decisions, meaning that most decisions of the courts were not recorded, or available in future cases. Now it has become the norm for courts to be referred to all sorts of previous decisions. Lawyers and LiPs must have a way of obtaining these quickly.”
Many expressed their opinion that open access law should be provided/supported by the government: “I would have no objection to public funds being used to help provide such a service, and can see good arguments for their being provided.” “I think it is a great service, and given number of decisions being produced by the court, and the expense (particularly for small law firms and sole practitioners, never mind students and the public) of ‘knowing the law’, it really should be a state funded service.” “I would support a campaign to release the Law Reports from ICLR and have them on BAILII.” “It is appalling to think how much of taxpayers money goes to the big two. I would much rather see BAILII get direct financial support from the government than see the amounts spent on the big two providers.” “BAILII's function ought to be provided the the UK government. It is a shame, nay, a disgrace in the information age, it is not.” “My general feeling is that it is totally taken for granted and that the profession, which pays huge sums to Lexis Nexis and others, should be much more willing to supervise it.” “I think it is an essential part of English life in the 21st Century, if it was not there, government would have to provide it and we all know what government IT is like!” “BAILII should be publicly funded. I would in principle be willing to contribute but would want the government to say why it won't fund BAILII first, before committing myself or my organization”.
CONCLUSION: BAILII AS SOCIAL CAPITAL
BAILII's accessibility and hyperlink capabilities contribute to what Frederick Schauer and Virginia Wise characterize as ‘social capital’. Writing for Law Library Journal in 1997, Schauer and Wise hypothesized that increasing access to primary law for non-lawyers and ordinary citizens can serve socially valuable purposes, encouraging citizens to see themselves more as part of a common and public-value-producing enterprise and less as partisan adherents to one or another warring faction.Footnote 25 Such a perspective echoes the underlying ethos of the EU's Information Society Programme and the Montreal Declaration on Free Access to Law (2002, as amended in 2007).Footnote 26
This is not to suggest that, standing alone, merely making primary law freely available, empowers the average citizen or suffices to meet needs of lawyers. Professor Richard Leiter makes the point that free materials, even if they comprise the sum total of all primary law in a country at every level and jurisdiction, will amount to only a minor portion of the materials that lawyers need in order to practice law, and the public needs in order to understand it.Footnote 27 The law for lawyers and non-lawyers alike needs ‘curating’. One such curating effort is freelegalweb.org, a project “designed to deliver a web service that joins up and makes sense of the law and legal community and analysis on the web, providing a substantially more reliable, useful and efficient service to both lawyers and the community at large than is currently available”.Footnote 28
There is much discussion both within and without the academic legal community about the open law movement. In particular, there is a great deal of debate about who can and should, take on the responsibility for providing open access to law and legal scholarship. To place BAILII within this broader perspective, the following articles are recommended reading: Timothy Armstrong's 2010 article “Crowdsourcing and Open Access: Collaborative Techniques for Disseminating Legal Materials and Scholarship”;Footnote 29 Stephanie Plotin's 2009 article “Legal Scholarship, Electronic Publishing and Open Access: Transformation or Steadfast Stagnation?”;Footnote 30 Ian Gallacher's 2008 article “‘Aux Armes, Citoyens!:’ Time for Law Schools to Lead the Movement for Free and Open Access to the Law”;Footnote 31 Olufunmilayo Arewa's 2006 article “Open Access in a Closed Universe: Lexis, Westlaw, Law Schools, the Legal Information Market”;Footnote 32 and Michael Carroll's 2006 article “The Movement for Open Access Law”.Footnote 33
On a final note, BAILII wishes to express appreciation and thanks for BIALL's long-term support and especially the recent indication that BIALL will increase its commitment in the coming years. The support of BIALL is very valued and much appreciated by BAILII which feels it is important to have the law librarian community as a major stakeholder.
