Beware the "50-State Survey"

"50-State Surveys" of the law have a certain allure, yet close analysis too often reveals shortcomings.

First, these surveys often declare state law, not based upon state appellate court decisions but upon predictions found in federal court decisions – frequently unpublished trial court decisions -- which do not embody “state law” in any binding sense.

Second, surveys sometimes overstate the cited holdings. One survey I received stated that numerous jurisdictions had held that an insurer did not have a “duty to settle” unless it had been presented with a demand within policy limits. However, few of the cited decisions actually involved an above-limits demand. Sure enough, when an above-limits demand case was later presented to a number of these courts, they found a duty to settle had arisen.

We are indeed “drowning in information but starved for knowledge,” as John Naisbett observed in “Megatrends.” For lawyers, prizing knowledge over "information" promises to yield a product that is more reliable as a whole, even if it is less impressive on the surface.