How State Courts Contract for Online Legal Information

Peter W. Martin
Cornell Law School

Last revised: 5/15/2008

This page is a work in progress. Corrections and additions to its table of contractual arrangements
(see below) will be added as received. Full copies of current contracts are especially welcome.


State court systems produce law in the form of judicial opinions that, with varying degrees of precedential weight or persuasiveness, guide future decisions and private decision-making. Courts are, however, by a vast margin, net consumers of legal information. To begin, judges perform their law applying and interpreting functions within frameworks established by their jurisdictions' constitutions, statutes, and administrative regulations. As a consequence, they require up-to-date collections of these materials. This country's messy federalism forces them to consult federal court decisions, on occasion, for interpretation of their own state's law and, more frequently, for rulings on federal statutes, regulations, and judicial precedent in the many matters coming before them that are governed, at least in part, by federal law. Primary legal materials from other states become important in cases of first impression and on topics where similar statutory or rule language is at issue. Annotations, commentary in many other forms, from journal articles to comprehensive treatises, are also critical resources for judges.

During the print era of recent memory, the judicial need for such an array of legal information meant that courts required law libraries. The need was not limited to appellate courts; trial judges, including those sitting in remote rural areas, required libraries. Indeed, viewing a jurisdiction's judicial system as a whole, the cost of furnishing adequate legal information to the trial judges spread across a state typically dwarfed the cost of meeting the needs of its few appellate courts, even though the latter received richer support. Ninety percent of New York's annual expenditure for legal information delivered to its courts is spent at the trial court level.[1]

In many states, including some of its largest, viewing the judicial system as a whole is difficult because of how the trial courts are funded and administered. A common pattern places responsibility for general jurisdiction trial court costs on the county or counties they serve. Over the last century, numbers of states have moved away from this structure, creating "unified court systems." In their most complete form, unified court systems centralize administration and fiscal responsibility for all courts, trial and appellate, at the state level. Municipal courts of limited jurisdiction continue to operate on their own, but the trial courts with general jurisdiction over civil and criminal matters are completely funded by the state. Unification or consolidation of the judiciary has often progressed in stages, however, with the state first taking on salaries while leaving facilities and support costs to be borne by local units of government.

These structural differences have had a profound effect on how state courts have responded to the transformation of the legal information industry that has taken place over the past decade and a half. Digital sources have displaced law books in the work of lawyers and judges. A succession of acquisitions and mergers produced two dominant online legal information services, Westlaw and Lexis, and soaring prices for the remaining print materials. While Lexis and Westlaw face competition, particularly in the the small firm segment of the legal profession,[2] none of their competitors offer collections of the depth and breadth of the big two. It is fair to say that today access to the basic law collection of one of these two services has replaced proximity to a print law library as a court requirement. And for many courts these digital libraries furnish depth and breadth they never able to afford in print.[3]

By virtue of having a unified structure or in some cases as the result of a state initiative focused on this particular area of trial court support, numerous states now assure access to the comprehensive online legal information offered by Westlaw or Lexis for all state courts and judges.[4] In others, however, trial courts must make their own arrangements, if they can, using such county or district funds as are available.[5] Court autonomy is sufficiently extreme in a number of states that even the different appellate courts contract for online legal research services independently.[6]

There are other dimensions along which state judicial systems differ in their response to the new information environment. Several have contracted on behalf of some or all their courts with both major services, making it possible for judges and their staff to work from Lexis, Westlaw, or both.[7] In contrast, others have contracted with a single source.[8] In some instances this has followed a competitive bidding process.[9] In others negotiation has been limited to one preferred vendor.[10] Furthermore, an initial competitive award can readily lead to subsequent negotiated extensions, for the costs of switching can seem large to users and administrators.[11]

Both Westlaw and Lexis have shown particular eagerness to secure judicial contracts, providing courts more favorable terms than they offer other units of state government.[12] In some instances these favorable terms are explicitly tied to a court's prompt delivery of data in its custody – decisions or briefs – in digital format to the vendor.[13] Court libraries that commit to continuing to buy one vendor's print products may also be offered a price break on that same material in digital form.[14]

Some contracts for online information call on the vendor for additional services – a public access web site[15] or an internal database for use of the court.[16]

The following table presents basic information on how state courts are meeting the legal information needs of their judges, ranging from those sitting on the jurisdiction's court of last resort down through its trial courts of general jurisdiction.

Peter W. Martin

 

1. State of New York - Judiciary, Budget Summary for Fiscal Year 2007-2008, at 6, 29, http://www.nycourts.gov/admin/financialops/Bgt07-08/07-08budgetwhole.pdf.

2. See Peter W. Martin, Reconfiguring Law Reports and the Concept of Precedent for a Digital Age, 53 Vill. L. Rev. __, ¶¶ 36-41 (2008).

3. Consider the content and capability called for by Maryland's 2008 RFP. None of the competitors to Lexis and Westlaw, not even LoisLaw, could qualify. See MD.

4. The list is a long one. See, e.g., AK, DE, KY, MD, MA, MT, NJ, OK, OR, RI, SC, TN, VT, VA, WA, WV.

5. See, e.g., KS, NV.

6. See, e.g., GA, OH.

7. See, e.g., OR, TN.

8. See, e.g., AK, MT, NJ, OK.

9. See, e.g., NJ, ND.

10. See, e.g., HI, KS.

11. See, e.g., MT.

12. Numerous sources report this price differential. It appears explicitly in the price list applicable to the Texas Master Agreement with Lexis. See TX.

13. See, e.g., HI, RI, WA.

14. See, e.g., AK, OK.

15. See, e.g., AK.

16. This is a component of the Maryland RFP. See MD.

Table of State Court Contracts

State Are state courts a single administrative and budgetary unit? Is contracting for judicial access to online legal information centralized? Which service or services hold current contracts? Are contracts periodically put up for competitive bidding? Notable provisions in current contract Documents and additional comments Source
AL Yes Yes Westlaw     The appellate courts (Supreme Court and Court of Appeals) also have a Lexis contract. Tim Lewis, Director and State Law Librarian, Alabama Supreme Court & State Law Library (5/7/2008)
AK Yes Yes Westlaw No

In return for agreement not to cancel subscriptions to the National Reporter Service (NRS) in print, contract includes access to NRS page images.

As part of the agreement, Thomson hosts a website containing the unenhanced text of Alaska state caselaw from 1960 (statehood) to the present --http://government.westlaw.com/akcases

Current contract Catherine Lemann, State Law Librarian (2/15/2007)
AZ              
AR              
CA              
CO              
CT   No       The appellate courts and trial courts (Superior Courts) have separate contracts. The latter have a contract with Westlaw.  
DE Yes Yes Westlaw and Lexis Yes, every 5 years Contains a non-disclosure provision   Chris Sudell, Deputy State Court Administrator (2/26/2007, 3/1/2007)
FL              
GA No No       Appellate courts (Supreme Court and Court of Appeals) and all 159 superior courts contract separately for online research services. Cynthia Clanton, General Counsel and Associate Director for the Administrative Office of the Courts (2/10/2007)
HI No No Westlaw No. The appellate court contract price reflects an agreement on the part of the courts (Supreme Court and Court of Appeals) to transmit their decisions to Thomson electronically. Appellate courts have one contract. The circuit courts negotiate a separate one. Ann S. Koto, State Law Librarian (2/5/2007, 2/28/2007)
ID Yes Yes Westlaw and Lexis       Idaho State Law Library (5/7/2008)
IL              
IN              
IA              
KS Mixed. Support costs of trial courts still borne at the county level, while all judicial salaries paid by the state. No Westlaw (for the appellate courts) No. A panel of senior judges decides on the vendor. Contains a non-disclosure provision There is a single contract covering the appellate courts (Supreme Court and Court of Appeals). Whether to have online research services at the trial court level and, if so, which one is determined by the 105 counties. Jack Fowler, Executive Assistant and Counsel to Chief Justice Kay McFarland, Kansas Supreme Court (2/1/2007)
KY Yes Yes Westlaw Yes     J. Reed Ennis, Assistant Law Librarian, Kentucky State Law Library (3/5/2007)
LA              
ME              
MD Yes Yes Westlaw Yes   RFP for 2008 contract
- Amendment
Steve Anderson Director, Maryland State Law Library (2/1/2007)
MA   Yes Lexis, Loislaw, Westlaw Contracts with all 3 vendors are periodically renegotiated.   In addition to the commercial services there is a MA law database maintained by the Social Law Library. Court staff are urged to use it and Loislaw before turning to Westlaw or Lexis. Marnie Warner, Law Library Coordinator, Administrative Office of the Trial Court (2/15/2007)
MI              
MN   No Westlaw When contracts expire, RFPs are issued which become the basis for negotiation.   There are separate contracts for the appellate courts (Supreme Court and Court of Appeals) and state trial courts. Judy Rehak, Senior Legal Counsel, Legal Counsel Division, State Court Administrator's Office (1/31/2007)
MS   Yes Lexis Yes     Jack E. Pool, Court Administrator and. Counsel (5/6/2008)
MO   Yes Lexis No   Counties are free to contract with other vendors for trial courts. Catherine Nelson Zacharias, Legal Counsel, Office of the State Courts Administrator (3/2/2007, 5/5/2008)
MT Yes Yes Lexis No   State law library holds a single contract covering all lawyers and paralegals working for state and local government, passing through the charge by billing all departments and courts according to number of passwords. State assumption of trial court operating costs (2003) and public defender costs (2006) expanded the number of users. Judy Meadows, State Law Librarian of Montana (1/31/2007)
NE              
NV No No Westlaw No   Nevada Supreme Court Library contracts with Westlaw on behalf of the court and its staff. State trial courts have their operating costs borne by counties placing their contracts for their information resources at that level. Kathleen Harrington, Law Librarian (2/20/2007)
NH   Yes Westlaw     Not every courthouse in New Hampshire has Internet access. Passwords are given to those most likely to need legal research resources: selected judges, law clerks and staff attorneys. Mary Searles, DIrector, New Hampshire Law Library (5/6/2008)
NJ Yes Yes Lexis Yes   There is a single statewide contract (for all government workers) which was put out for bids by the NJ Dept. of Treasury. Philip S. Carchman, Acting Administrative Director of the Courts (2/2/2007)
NM   Yes Lexis and Westlaw No   Currently contracts with both Westlaw and Lexis cover both appellate and district court judges. Robert Mead, State Law Librarian (5/6/2008)
NY              
NC              
ND Yes No Lexis and Westlaw Yes   There is one contract, currently with Westlaw, covering the state trial courts. There are separate contracts for Lexis and Westlaw for the Supreme Court. Competitive bidding of the trial court contract has caused changes in vendor over the years. Ted Smith, Law Librarian (1/31/2007)
OH No No Lexis and Westlaw     Supreme Court, individual Courts of Appeals and trial courts all contract for online legal research services on their own. The state's contract with Thomson for publication of its official case reports provides the Supreme Court and individual Courts of Appeals discounted rates for Westlaw.

Jo Ellen Cline Legislative Counsel (2/1/2007)

Ken Kozlowski, Director, State Law Library (2/1/2007)

OK Yes Yes Westlaw No

Contains a non-disclosure provision

Westlaw price is tied to quantity of book purchases from Thomson

Oklahoma's Court of Criminal Appeals contracts for online legal research services separately.

The Oklahoma State Courts Network (www.oscn.net) maintains a comprehensive and up-to-date state law collection that is heavily relied upon by attorneys in the rural counties.

Terri Calloway, Director of Legal Information and Law Libraries, Administrative Office of the Courts (2/21/2007)
OR   Yes Lexis and Westlaw No   All judges and their legal staff receive passwords for both Lexis and Westlaw, so that they are able to use either or both services. Joe K. Stephens, State of Oregon Law Library (1/31/2007)
PA No No Lexis and Westlaw No   There is a single contract covering the appellate courts (Supreme Court and Court of Appeals). Whether to have online research services at the trial court level and, if so, which one is determined by the 105 counties. Timothy McVay, Supervising Staff Attorney, Administrative Office of the Pennsylvania Courts (3/12/2007)
RI Yes Yes Lexis and Westlaw Yes Westlaw contract provides Supreme Court gratis access to RI briefs in return for court's assistance in furnishing the data to Thomson. The price of the Westlaw contract is also tied to continuing purchases of Thomson print publications. Westlaw contract is limited to the Supreme Court. Lexis contract extends to all levels of state judiciary. Karen Quinn, State Law Librarian (2/22/2007)
SC   Yes Lexis and Westlaw Yes   Lexis contract is limited to the appellate courts (Supreme Court and Court of Appeals). Westlaw contract extends to all levels of state judiciary. Dan Shearouse, Clerk of the South Carolina Supreme Court (1/31/2007)
SD              
TN Yes Yes Lexis and Westlaw     Contracts with both Lexis and Westlaw cover all state-paid judges. Tim Townsend, Deputy Director, Administrative Office of the Courts (2/06/2007)
TX No No Lexis and Westlaw    

State law library has master contracts with both Lexis and Westlaw under which individual courts can subscribe, but all courts are free to negotiate their own (better) terms and increasing numbers have done so. Some of those Westlaw deals include discounts in return for the courts furnishing decision data or briefs in electronic form to Thomson.

Master Lexis contract
- Renewal
- Price sheet

Master Westlaw contract (2000) (Current version not available)
- 2006 renewal

Lesley Martin Ondrechen, Paralegal Office of Court Administration (1/31/2007)

Leslie Prather-Forbis, Assistant Director State Law Library (4/30/2008)

UT   Yes Lexis Yes   Contract covers more of state government than the judiciary. Jessica Van Buren, Director Utah State Law Library (5/7/2008)
VT   Yes Westlaw Yes   Contract covers all of state government, not just the judiciary. Robert Hubbard, Chief Law Clerk, Vermont Trial Courts (2/28/2007)
VA   Yes Lexis Yes     Karl R. Hade, Executive Secretary, Supreme Court of Virginia (2/27/2007, 5/1/2008))
WA   Yes Lexis Yes Courts agree to transmit their decisions to Lexis in electronic format as rapidly as possible.

Current contract
- Amendment

C. Farrell Presnell, Contracts Officer, Administrative Office of the Courts (2/5/2007)
WV Yes Yes Westlaw   Contains a non-disclosure provision   Kathleen S. Gross, Deputy Administrative Director (2/1/2007, 5/5/2008)
WI              
WY   No     Supreme Court has free access to Westlaw briefs database in return for its transmitting them. There are different contracts for the different court levels. The Supreme Court has contracts with both Lexis and Westlaw. The District Courts have a Westlaw contract. The Circuit Courts do as well. Kathleen B. Carlson, Wyoming State Law Librarian (5/7/2008)