We recently made several changes to our Key Number System. West’s Attorney-editors reclassified approximately 400,000 headnotes. Most significant changes are to Criminal Law (110) and Arrest (35). In the topic Criminal Law, the Key Number System has been substantially revised in several areas relating to the admissibility of evidence, such as “other crimes” evidence, statements and confessions, and evidence wrongfully obtained.  In the topic Arrest, major changes have been made with respect to police stops, among other issues.

Any former key numbers will continue to exist on Westlaw beside the new key numbers, but will be tagged as “formerly.”  So, the former key numbers will remain searchable. To search for former topic and key numbers, go to the appropriate database and try a search such as: TO(FORMERLY +5 110K1)

Thanks to my colleague Susan R. for providing this information.

I’m a great fan of West’s Key Number system.  Not only is it a useful research tool, but it can also be a huge source of entertainment.  I’ve been a Westlaw Headnote of the Day subscriber for years.  A recent Headnote of the Day featured the following headnote (click here to see the accompanying cartoon), which got me thinking about judicial notice:

157 Evidence > 157I Judicial Notice > 157k14 k. Facts Relating to Human Life, Health, Habits, and Acts.

District Court of Appeal may take judicial notice that even a normal person on seeing a disgusting looking object in bottle from which he has drunk may and often will suffer intense nausea which may produce more serious results.  Paul v. Rodgers Bottling Co., 6 Cal. Rptr. 867 (Cal. Ct. App. 1960).

Judicial notice can be a fascinating subject.  Some items, of course, are more obviously going to be judicially noticeable, such as the existence of a suit filed in another court, or the day of the week, or the identity of the President of the United States. 

But some areas are less clear.  For example, I have gotten a number of research questions regarding whether the contents of a website is a proper subject of judicial notice.  A quick search of the Key Number Digest turns up 70 headnotes under Judicial Notice that contain the word “website,” across state and federal materials.  So we see language like the following:

157 Evidence > 157I Judicial Notice > 157k1 Nature and Scope in General.

Court may take judicial notice of website’s contents, assuming its authenticity has not been challenged and it is capable of accurate and ready determination.  Francarl Realty Corp. v. Town of E. Hampton, 628 F. Supp. 2d 329 (E.D.N.Y. 2009).

But parties should also be wary of relying on websites:

157 Evidence > 157I Judicial Notice > 157k27 Laws of the State > 157k29 Public statutes

The Court of Appeal would not take judicial notice of the Legislature’s internet site showing laws currently in effect, including a statute that plaintiff alleged was in effect, in determining that the statute had been repealed; the website was not brought to the attention of the trial court, the website was not the official, printed Government Code, and the website made no promises regarding its accuracy. Zumbrun Law Firm v. California Legislature, 82 Cal. Rptr. 3d 525 (Cal. Ct. App. 2008).

On Westlaw.com, users can reach the Key Number system from the link of the top of any page.  For WestlawNext subscribers, the Key Number System page is linked from the Tools tab on the WestlawNext home screen.  Both offer options for browsing Key Numbers in a table-of-contents format, or searching by jurisdiction. 

Here are two other matters I found by browsing 157 Evidence > 157I Judicial Notice > 157k7, Qualities and Properties of Matter:

It is a matter of common knowledge that motorcycles, if operated loudly, can be objects of great annoyance. Berlinger v. Suburban Apartment Mgmt. Co., 7 Ohio App. 3d 122, 454 N.E.2d 1367 (Ohio Ct. App. 1982).

That small amount of water in bathtub creates slippery condition is matter of common knowledge. Cooper Hotel Services, Inc. v. MacFarland, 662 So. 2d 710 (Fla. Dist. Ct. App. 1995).

[Editor's Note: this is article is part of a brief series dedicated to fact-specific and pre-trial research frustrations]

Strolling past the John B. West commons here in Eagan, I wonder,  is that his real name?  Sinclair Lewis’ Babbit (another Minnesotan)  used to say, “I may not be any Rockefeller or James J. Shakespeare, but I certainly do know my own mind, and I do keep right on plugging along in the office….”  In fact, John B. is his real name. The “B” is for Briggs.  Check out Robert Jarvis’ profile in the American Journal of Legal History (50 AMJLH 1)

Early in the twentieth century, John B. West developed the topic and KeyNumber System – a digest of American law. Some have challenged the Digest’s relevancy — it’s “literary warrant”  — for the digital age.  Even William Patry, a West author, relegated it to the “crassest form of cattle branding.”  According to Professor Peter Schanck, attorneys  “tend to concentrate more on the facts … than on abstract doctrines. In so doing, they prefer searching descriptive word indexes over topical analyses, and they search the indexes as much for factual terms as for legal concepts.”   (See Peter Custer citing Schanck at 102 LLIBJ 251.) Really? In fact,  Custer noted that his research indicates “an overall preference for using both descriptive word indexes and topical analysis followed by a lesser preference for using the descriptive word index alone, with only a small number preferring to just search using topical analysis.

Well, I may not be any John B. West but I certainly do know my own mind.  I’m a big fan of William Patry but I use the Digest every day.  Ultimately, I think the combined method described by Custer is preferred by Reference Attorneys who know the Digest well.  Many times, searching the topic as it relates to specific facts is critical. But, I wouldn’t give up the Digest.

Consider copyright fair use.  The elements of fair use are well known and easy to cite. But, according to Patry, “Fair use is an issue that is decidedly not capable of generalized application. Fair use is, as the U.S. Supreme Court and the Congress have repeatedly noted, highly “fact-specific,” to be adjudicated only on a “case-by-case basis”” (PATRYFAIR 7:5).  It makes sense, then, for Patry to organize his chapter on the fair use of life stories by case:

• Toksvig v. Bruce Publishing
• Eisenschiml v. Fawcett Publications
• Greenbie v. Noble
• Holdredge v. Knight Publishing
• Rosemont Enterprises. v. Random House
• Estate of Hemingway v. Random House
• Meeropol v. Nizer
• Rokeach v. Avco Embassy Pictures
• Iowa Sate Univeristy Research Foundation v. American Broadcasting Co.
• Salinger v. Random House
• New Era Publications Int’l ApS v. Henry Hold & Co.
• Wright v. Warner Books
• Norse v. Henry Holt & Co.
• Nash v. CBS
• Elvis Presley Enterprises v. Passport Video

The following search for the same subject matter on Westlaw delivers 50 results:

Federal Intellectual Property Law Cases (Copyright): fipc-cs

Initial Search: biography /s fair-use (50 Results)

I have little doubt that most, if not all of Patry’s cases are in the result set or cited within cases of this result set.  But, is reviewing all 50 cases the most efficient means for isolating the important cases?  Instead, try using the topic number for copyrights like this:

Locate: to(99) /p biography /s fair use (19 Results)

The results begin to look more like Patry’s contents.  Patry described the KeyNumbers as insipidly generic. Generic? In this case, maybe, especially in the way we’re using them. It’s an extraordinarily simple edit.  I wouldn’t say, ‘insipid’,’ however.  How might you measure the value of reducing your result set from 50 to 19? The 19 results do not replicate Patry’s list exactly but it very likely represents a shorter path to the important case law on this topic. WestlawNext fares even better.  The Digest is now working behind the scenes as part of WestlawNext’s WestSearch.  Our search for

copyright fair use in biography or life story

delivered all but three of Patry’s cases directly in the result list.

Finally, in keeping with our theme for the week, let’s also consider pre-trial discovery issues.  Discovery is another area where many of our customers require fact-specific results. Quite often, the answer is, there is no answer.  Or, rather, we necessarily resolve ourselves to, ‘is it likely to lead to the discovery of admissible evidence?’  Or, ‘is it unduly burdensome?’ But, what if you’re investigating the burdensomeness of a particular item? Maybe you wouldn’t want to miss a case with your facts.  So, try these searches with topic-number related roots and fact-specific terms:

State Discovery / Procedure: to(307) /p meta-data

Federal Discovery / Procedure: to(170A) /p meta-data

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“I’m looking for a particular phrase and my search returned a lot of cases, but they’re only mentioning the term in passing instead of discussing it.  What can I do?”

I’m getting this question a lot and I have two solutions that usually solve the problem.

First I use term frequency to make sure the case is mentioning your term more than once.  Under the Search Westlaw button is a link for Term Frequency in many databases.  Clicking on term frequency gives you the option to require your terms and decide how often they must appear in the document.  By forcing your terms to appear multiple times you’re more likely to get cases discussing them in detail.

The other option is to require your term in the headnotes of the case.  This too means you’re likely to get cases that discuss your terms more thoroughly.  For example, if you’re searching for breach of contract, enter HE(breach! /2 contract).  Then, add additional terms;  HE(breach! /2 contract) & “unclean hands” will search for any case with breach of contract in the headnotes and unclean hands anywhere in the case.

*Editors note available in the comments //