eDiscovery Daily Blog

• June 12, 2018

Lawyers often spend hours on legal research to identify cases to cite in their briefings to the court.  Hopefully, they do a thorough job and identify all of the key case precedents that can support their case.  But, how often do they miss key, highly relevant cases?  And, how often do those omissions jeopardize the outcome of their cases?  Based on one survey of Federal and State judges, it happens a lot.

The legal research company Casetext surveyed 66 federal and 43 state judges to learn whether missing precedent over affects the outcome of a matter and published the findings in a report The Prevalence of Missing Precedents (available for download here).  The survey asked just two questions:

1. How often do you or your clerks uncover case law that attorneys should have cited in their briefing but did not?
2. Has a party missing a precedent before your chambers impacted the outcome of a motion or proceeding?

With regard to the first question, judges were asked how often they uncover case law that is not cited in the attorney’s brief, on a scale of “never happens” to “almost every case.” The findings revealed that:

• 83 percent of the judges said that they or their clerks catch attorneys missing relevant cases at least some of the time.
• Over 27 percent of the judges (and 29 percent of the federal judges) see it occur the majority of the time or in almost every case.
• Less than 17 percent experienced missed cases rarely.

With regard to the second question, when asked whether missing precedent impacts the outcome of a motion or proceeding, over 68 percent of judges (and nearly 70 percent of federal judges) have experienced missing precedent impacting the outcome of a motion or proceeding.

Of course, as Bob Ambrogi notes in his LawSites blog, “For Casetext, the takeaway of this survey is that lawyers should use its CARA artificial intelligence technology to help find missing cases.”  And, that is certainly a good tool.  But, as Bob notes (and I agree), it’s important to use multiple tools to round out your legal research.  When it comes to research about eDiscovery cases (and which ones we’re going to cover), we use eDiscovery Assistant (our write-up on that tool is here), which is a great research tool.

And, eDiscovery Daily has written over 600 case law write-ups, covering over 460 unique cases, since our inception in 2010.  So, you can always check our site as well!

So, what do you think?  What sites do you research for case law precedents?  Or any comments you might have or if you’d like to know more about a particular topic.

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Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.