Information literacy is a well-established principle in library and information studies. Ensuring that their target population – users of their libraries and information centres – are information literate is a key goal of librarians and information specialists. The concept requires that library users know (or know how to determine) the questions they need to ask, how to find (or seek assistance in finding) the information they need to answer their questions, and – crucially – how to critically (and perhaps skeptically) examine and understand that information.
This goal applies equally to the specific context of legal analysis and legal research. Those of us who earn our livelihood by conducting or instructing legal research are aware that it is not simply an exercise about locating the silver bullet case. Effective legal research requires the researcher to be information literate, which itself requires legal analysis – the elements above: knowing (or finding out) the relevant legal issues, knowing how to find the information – cases, legislation – that will help resolve the issues, and the ability to critically analyze what they discover. Again, the last point is crucial and is at the heart of the lawyer’s or student’s responsibility.
Where is this long lecture in the application of library principles to legal research in practice (or study) going? My point is that the way that many current legal researchers and students carry out this work is not centred in information literacy. Many students have as their goal finding that silver bullet case. And the unfortunate consequence – or perhaps cause – of this, in my view, is an over-reliance on full text on-line searching, as a first step in research – whether full text on-line in the commercial legal databases or even full text searching in an in-house knowledge management system.
I think effective information literacy in the context of legal research and, therefore, proper analysis of a legal problem, requires a road map of some sort. The research issue cannot be resolved if it is not first properly understood. A road map often exists in the form of traditional legal finding tools that help the researcher determine the appropriate context for the research – help the researcher more precisely identify the issues being addressed. The finding tools are familiar but often overlooked in an impulse to get on-line for some quick full text searching in what often turns out to be an unnecessarily large haystack. Those in private practice know well that there are several reasons for this type of research. Quite often there are heavy demands on students’ time, so the urge to take shortcuts is understandable. A desire or instruction to keep costs down can pressure researchers to minimize time spent on-line, with the result that they do not always read the cases beyond the headnotes or the immediate context of the search terms. Time constraints and working on the basis of case law first also may mean that the researcher does not read the precedents cited within the cases they found, so really cannot properly understand the context or basis of the analysis in their search results. All of this defeats information literacy.
Legal encyclopedias, topically arranged digest collections (including topical case reporter digests) are the most basic finding tools. Tables of contents, back-of-book indexes, and tables of cases or statutes in these tools and in text books are all effective access points for locating information in these tools. And internal knowledge management systems – in terms of their controlled vocabularies, taxonomies, or indexing schemes – also satisfy the function of organizing thoughts and analysis. For more experienced lawyers and researchers finding tools may be less traditional: the experience itself, review of favourite secondary sources such as a textbook in the general area of law or topical case reporters and their digests, previous research and analysis in the area – perhaps in a knowledge management database – or discussions with colleagues.
Following the maps that these tools lay out, students and young lawyers can ensure, first, that they have identified the issues correctly, second, that they consider any additional relevant issues, and third, that they read and understand the legal context of the issues. Context allows the researcher to critically evaluate the cases where their research leads. On-line searching, particularly full-text, on its own or as a starting point may lead the researcher to what looks like the right answer when, in reality, it is to the wrong question. This happens so frequently in the research of students, even those who have great facility with on-line research. And once in a while this lack of information literacy is evident in de-contextualized research which forms the basis of faulty analysis which, in turn, leads to unimpressive case law decided in reliance on inappropriate case law cited to the court. And the existence of such cases on the books (or in the databases) makes future legal research even more difficult.