Never Have I Ever; The Headnote Writing Method

 In the days of yore when I was in law school, there was a mode of research called the "Digest" or "Headnote" method. If there was a point in a case you wanted to follow up, you would use the West state, federal or regional reporter version of that case to identify the coded keynote topic and number associated with that point. Then you could go to the West Digests (e.g., state, federal, regional, decennial) to find additional cases dealing with that same or similar point. Also, if you were trying to get into a new subject generally, you could start with the relevant Digest and pick through it until you found the Digest topic numbers for the specific points where you needed to drill down, then pull all the case digested under those topic numbers. It was a finding tool then, and we always read the cases in full text, in part because West apparently hired law school washouts or hind-quarter grads to compile the digests, and they were frequently unreliable in material respects.

The last couple years, I have noticed that some young lawyers have developed a Headnote method of actually writing their pleadings and briefs. That is, they start out with the premise they are trying to support, run some handy automated Lexis or Westlaw searches to generate results by searching the headnotes field of cases, then cut and paste from the headnotes anything that looks like it possibly supports their premise, but without actually reading the cases.

In consequence, when I go and pull the bazillion cases cited in their (typically prolix) masterpieces, I often find that some facet of their key authority come from a case that doesn't really help them, because, for example, the holding is actually dependent on some highly non-normative statute or constitutional provision unique to the jurisdiction where the case was decided. Almost as often, I find that the full text of a cited case actually destroys their position, because it contains the statement or rule they have relied on to support their premise, but also mentions limitations or restrictions on the rule that blow the attempted use of the case out of the water.

I find myself wondering, how in the Hell are they getting by with this? Are significant numbers of their opposing counsel and modern-day judicial clerks also not taking the time to check the cited authorities or read the cases to see if they really support the points for which they are offered? Has anybody else noticed this developing trend?