An Exchange on Legal Research and Outsourcing

Because there are likely to be those who read Slaw but aren’t subcribed to the CALL email list, I thought the following exchange on outsourcing from that list might be of interest. (I also hoped it might encourage more CALL list subscribers to read Slaw, where they would have learned about outsourcing to India quite some time ago.) I should add that these emails are being reproduced with the permission of the writers.

1. Susan Crysler
McCarthy Tétrault LLP

There is an article in the Vancouver Sun today (CanWest News Service) with the headline “Canadian lawyers outsource work to India to save costs”, written by Janice Tibbetts (page A4). Today’s article cites to an article in the National on outsourcing, has a couple of quotes from Simon Chester about outsourcing of legal work to India and is generally interesting enough to read from beginning to end. However, there is a sentence in the article that has stayed with me today and that I can’t quite exorcise from my thoughts:

“…lawyers in India selling services offshore have focused mainly on the routine grunt work that is often done by junior lawyers, such as research.” (highlighting is mine)

Perhaps it is the summer heat that has descended so suddenly and wonderfully upon the west coast or perhaps it is the fact that I have actually had time to read the article and fully digest it, but I feel that I have been missing something in the definition of legal research and have been labouring under the illusion that legal research matters. Who knew?

2. Ginette C. Thériault
New Brunswick Office of the Attorney General

Legal research does matter, it is the gist of the lawyer’s work. I’ve been a lawyer for the past 20 some years and still do my own legal research. The decision process is as important, sometimes more, than the outcome of a case. By researching the law, you process and analyze as you move along and determine how it is applicable to your own case. Anyway, time does change but not always for the better!

3. Ian Colvin
Fraser Milner Casgrain LLP

When we conduct our summer and articling student orientation, one of the last things I say to them is “research is not the simple preliminary before you start the more interesting activity of a file. Rather, everything else is simply a footnote to the research. Do the research well, and everything will go as well as can be hoped for you. Do it badly, and everything will end in a shameful mess.”

I truly believe my little bit of rhetoric. But I am also aware that most of my charges very quickly come to the position that however important research might be, they dream of a day not too far distant when they won’t have to do it themselves. For some reason, their personal interests are elsewhere than in the research process.

4. Connie Crosby
Weir Foulds LLP

Well, don’t believe everything you read. My experience with mainstream media is that they get the general tone of the story right, but the details are somewhat fuzzy. Their original material might have said something like “review existing precedents” or “read cases” and that got summarized as “research”. That being said, if everything becomes available in electronic form, what is stopping a talented person in another country from doing Canadian legal research? We have to find ways to differentiate ourselves (if we haven’t already), such as providing service customized to the particular needs of the individual assigning the work. We do have the advantage of knowing our organizations’ cultures and the individuals.

If anyone hasn’t yet read The World is Flat by Thomas Friedman, I encourage you to do so. It’s a real eye opener.

5. Connie Crosby
Weir Foulds LLP

There are different versions of the story running. The canada.com version is here and in the same line explains a little better:

“Over the last few years, lawyers in India selling services offshore have focused mainly on the routine grunt work that is often done by junior lawyers, such as research, in which lawyers comb through legal documents searching for information to back up a case.” (emphasis is mine).

That doesn’t necessarily mean the lawyer in India has found the documents, but instead means the lawyer is doing the reading. Still, it doesn’t leave a good impression of our work, does it?

6. Michael Lines
Canadian Forum on Civil Justice/Forum canadien sur la justice civile

As we all know, Legal Research and Writing has always been the lowest on the law school curriculum totem pole. See L. Sossin’s Discourse Poitics: Legal Research and Writing’s search for a Pedagogy of its own. 29 New Eng. L. Rev. 883 (1994-1995) for a review of the literature. He dismisses the often cited ivory tower/professional school dichotomy as irrelevant, and locates the trouble in the fill-in-the-blanks approach, where legal writing (and research) is seen as a rote or unceative exercise. One might expect journalists to apreciate the value of a compact and accurate phrase, which “…information to back up a case” is not. But such does require… research.

Otto Premenger directed Jimmy Stewart in what is probably the best courtroom drama ever made, Anatomy of a Murder (1959, see http://en.wikipedia.org/wiki/Anatomy_of_a_Murder). There is a lot of drama in the courtroom, but the scenes, at least two I think, of the lawyers researching the facts and finding a breakthough, are presented as the real intellectual core of the project. Books play a large role in the movie, which also draws an interesting contrast between character and professionalism.
At Headstart recently, Edmonton’s legal research bootcamp, Justice Stephen Hillier welcomed the students with several reasons for taking legal research seriously. He emphasised the carrot: that research skills will sustain the lawyer through any kind of career change, and the stick: judges read your factums, and if they suck, you lose credibility (not his actual words). Additionally, Wendy-Ann Berkenbosch, a partner-track research lawyer with Davis and Co., opened with “1) nLegal research is not just for students and juniors. 2) More and more firms are recognizing the value of senior lawyers dedicated to legal research and analysis. 3) nWhile the facts are always important, many cases are won and lost on the strength of legal argument.”

7. Edward King
Government of Canada Competition Bureau

It’s difficult to tell just what service is being offered here, since research and “legal documents” are both flexible terms. The language supports the conclusion that the research at issue here consists of poring through digitized business records–the “needle in the haystack” search for evidence. This might fairly be characterized as “grunt work.”

The reference to offshoring the preparation of a legal brief is interesting though, and it should be noted that the Indian company employs “lawyers” for this service, so one should anticipate that a very sophisticated service is being offered. Like most of you, I regularly serve clients hundreds of miles away, or even provinces away: should it matter to us whether the client is in Bangalore or Toronto? Maybe there is an opportunity to mediate the research needs of the research lawyers in India. This model of research might provide opportunities for N. American based librarians.

8. Joan D. Bilsland
Burnet Duckworth & Palmer LLP

In Alberta we have undergone a significant change in limitations law (the new s. 7(2) of the Limitations Act). The provision restricts the ability of parties to shorten limitation periods. The nuances are subtle but the result substantial. The provision was proclaimed, rescinded and re-proclaimed over 3 years. I wonder how an off-shore law firm would handle the history and implications of the change when materials were not all available online or in the standard databases of Lexis, Quicklaw, etc.

Imagine being the lawyer on a large transaction who at the 11th hour finds out that the standard reps and warranties are no longer valid. Would the research from Mumbai actually help him?

How can a lawyer establish a credible reputation without actually knowing the area of law, without knowing the answers?

Research does matter and it is at the lawyer’s peril to ignore it.