Problems with Modern Electronic Legal Research—the Importance of “Rosetta Stones”

By Michael Wein

The ancient Egyptians – the builders of the Sphinx, the Great Pyramids, and rulers of much of the “fertile crescent” for millennia —  were a mystery civilization for one main reason: No one could decipher their hieroglyphic writing. That changed in the early Nineteenth Century, when Napoleon’s Army stumbled upon a marker holding Ptolemy’s Decree: the Rosetta Stone.  The Rosetta Stone contained writing in three languages on the same tablet:  (1) Egyptian Hieroglyphics (which no one alive for centuries understood or read), (2) Egyptian “Demotic” cursive writing, and (3) Ancient Greek, which was still used regularly by scholars.  And because it was a “translation” of the same decree, it became the “key” in 1822 for understanding Hieroglyphics (mostly for working back the translation through Ancient Greek), it began a reinvigoration in interest in the Egyptian history that was once thought lost.

Legal research in our modern era, now through online databases like Westlaw and Lexis, may appear distant from the ancient Hieroglyphics (depending on the case you’re working on). But there is a lesson in the Rosetta Stone for us.

Earlier this year, I cautioned in a post about modern electronic legal research that online databases’ algorithms may miss precedential and persuasive cases, particularly for obscure or narrow areas of law or fact. These algorithms allow the user to use Google-like searches, and will pull and list results that may not match the exact language of your search, but also try to (based on algorithms) identify the intent behind your search and then match documents for that perceived purpose; it is, again, like Google. (For more on how these algorithms work despite their “proprietary” nature, see this article from the Colorado Law Scholarly Commons). These algorithms may miss valuable, but not well-travelled, precedent. My prior post recommends using them both – use the Boolean logic search to thoroughly explore the topic, then double check with a natural wording-type, algorithm-based search.

But like most things, there are exceptions and qualifications to this advice. There is one exception I have identified to the preference for Boolean keywords.[i] One cannot assume that a “keyword” or “key phrase” remains consistent over time.  “Rosetta Stones” cases is a term I use to refer to when the name of the legal concept or term that you are searching for has evolved through the ages; the Rosetta Stone case is an opinion that provides the lineage connecting historic principles using different naming conventions, with their modern terminology. A Boolean “keyword” search will only provide results using that exact name; therefore the prior, foundational precedent for this issue, albeit perhaps under a prior term, remains hidden from modern “keyword” searches. There needs to be a connection, or Rosetta Stone, between the prior name and its modern one. Since computerized legal research with Westlaw and Lexis became the norm, the importance of leaving “Rosetta Stones” keywords has newfound value, both for judges and attorneys. Without it, whole areas of precedential and persuasive case law and legal reasoning could be lost.  The intrepid researcher may still uncover it, by luck or happenstance, like Napoleon’s Army, but it’s by no means guaranteed. Finding and translating Rosetta Stones, however, significantly reduces this possibility, especially with Boolean logic searches, as well as algorithmic “google” searches, which already have difficulty locating “obscure” cases and as “proprietary,” are hard to gauge.  

Two specific examples can best illustrate the metaphor.

When a Rosetta Stone is Not Left to be Found in the Appellate Decision.

Let us suppose that a legal term that you are researching has become less used and useful over decades.  Perhaps some synonym has become more popular.  Or the phrasing has become unnaturally awkward.  Or other similar concepts have developed, so those new word or phrase developments are no longer what are examined first when searching for and arguing trial and appellate cases.  

One such case involved the “Testamentary Exception” to the Attorney Client Privilege, a topic taught in law school, and which appeared to have no Maryland caselaw on topic. Benzinger v. Hemler, 134 Md. 581 (1919), an obscure 95-year-old case that was rarely cited in subsequent Maryland case law, did not cite the keywords that guided by legal research, i.e., “Testamentary” or phrase “Testamentary Exception.” It was not cited in the American Law Report on subject (66 A.L.R. 2d 1302 (2012)(“Privilege as to Communications to Attorney Connection with Drawing of Will.”).  Instead, it was worded as a matter of evidentiary testimony that’s available.  To be fair, there was an unusual dearth of cases in Maryland, but the three cases citing Benzinger (the most recent tracing to 1975), did not specify the change in wording being used to one of “privilege” to properly understand and locate the precedent.  Ultimately, the Court of Appeals, in Zook v. Pesce, 438 Md. 232 (2014), identified Bensinger’s precedential value, stating that the “testamentary exception has existed in Maryland for close to a century, despite never having been formally named.”  Zook v. Pesce, 438 Md. 232, 243 (2014).[ii]  However, because no one had later updated the Court with recent precedent, acknowledging the “name change” on the legal issue, there existed significant confusion on the “Testamentary Exception” which had been remarkably sub silencio adopted, but misplaced for about a century.   

When a Rosetta Stone is Properly Found and Locatable in Appellate Decisions.

Recently, the topic of an appropriate “Rosetta Stone” came up in researching the “independent” and “separate” tort of Breach of Fiduciary Duty recognized in Plank v. Cherneski, 469 Md. 548 (2020).  That decision was correctly decided in confirming that the Breach of Fiduciary Duty tort in Maryland was robust, and  among other matters decided, clarifying over two decades of confusion created by some wording in Kann v. Kann, 344 Md. 689 (1997).  Yet, there remains some additional appellate cases on exactly what qualifies, under the tort, as “[t]he type of relief that is available will be determined by the historical remedies provided by statute, common law, or by contract.” [Emphasis Added]  Plank v. Cherneski, 469 Md. 548, 597 (2020). 

Here with some diffing, there a “Rosetta Stone” in play here too, particularly when examining the “Breach of Fiduciary Duty” arising from claims that are comparable to fraud.  For that, you have to find the “Rosetta Stone” case of Hooper v. Hooper, from 1895.  That’s the case that quietly “translated” the old phrase of “fiduciary relations” to the modern phrase of “breach of fiduciary duty.”    

“[T]his is not a proceeding to recover compound interest as a penalty for the breach of a fiduciary duty, as in Ringgold v. Ringgold, 1 Har. & G. [11] 79, and Diffenderffer v. Winder, 3 Gill & J. 311; nor does it belong to the group of cases of which Rayner v. Bryson, 29 Md. 480, and Dennis v. Dennis, 15 Md. 73, are illustrations;”  [Emphasis Added]

Hooper v. Hooper, 81 Md. 155 (1895).

For Hooper, it would be preferable the “word phrase” change was identified both specifically and accurately.  But unlike Benzinger, it’s at least locatable in Maryland, linking Hooper with Ringgold (which noted “duties” for “persons in fiduciary relations” involving widows and orphans), and appears to be the first use linking the same concepts in the Maryland appellate courts.  But prior to the 1930s, with possibly one exception in Maryland,[iii] the phrase “breach of fiduciary duty” was not used.  It was called “breach of trust” or something akin to seeking relief for violations of “fiduciary relations.” 

Thus, the misnomer of case law interpretation after Kann, in both the Maryland state court and Federal courts, was perhaps a bit more understandable, when it’s not as obvious as it should be “breach of fiduciary duty” really traces back to the 1800s in Maryland, and arguably goes back even further, into English Common Law.  For both appellate courts ascertaining the “correct” legal interpretation, and in writing appellate decisions for posterity, it’s now more important than ever, even if it’s just a footnote or endnote, for the audience to be able to search for words or word-phrases that have changed or morphed, to be able to trace back accurately.  There should be at least one appellate case that acts like a “Rosetta Stone” for translation.

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[i] The main way I know, is though experience. As a matter of disclosure, I was counsel for Petitioner Zook in Zook v. Pesce, 438 Md. 232 (2014), though Ms. Zook represented herself in the Circuit Court and the Court of Special Appeals.  My office also did the Amicus Brief for the Maryland Association for Justice in Plank v. Cherneski, 469 Md. 548 (2020). 

[ii] “Happily for both parties in this case, Maryland recognized the wisdom of the testamentary exception about a century ago. As this Court explained in Benzinger:

[…]

The Benzinger Court held that the trial court erred by not permitting the attorney who drafted the will “to testify as to the transactions, circumstances, and instructions given by the testatrix […] (Cleaned up) As evidenced by this Court’s holding in Benzinger, the testamentary exception has existed in Maryland for close to a century, despite never having been formally named. Nonetheless, it has been some time since this Court has spoken on the testamentary exception.” [Emphasis Added]   Zook v. Pesce, 438 Md. 232, 243 (2014).

[iii] See Horsey v. Hough, 38 Md. 130, 140 (1873); see also Booth v. Robinson, 55 Md. 419, 437 (1881)(“In the English Courts, the case of the Charitable Corporation vs. Sutton, 2 Atk., 400, decided in 1742, is the first that occurs in which the liability of the directors to the corporation for breaches of duty amounting to breaches of trust, is fully and accurately defined[…]”)