Who Does Legal Research?
Sorry if you thought I am writing a “Who does legal research anymore, anyway?” column this time. What I mean by the title, and what I mean to ask in the column, is in what settings and by whom is legal research done today, and whether the answers to these questions call for any action by legal research professionals. Those of us who carry out legal research or provide legal research instruction as a regular part of our livelihoods or occupations often think of legal research in what I think of as a more traditional context: the private law firms, the corporate legal department, the government (i.e., justice departments), the courts (i.e., by court counsel and students/clerks), the law school (by or for students and professors).
But, invariably, others carry out legal research or might even provide instruction in research. And this might include research of varying natures. That is, perhaps research or instruction in these other contexts is “peripherally” legal, or traditional legal research.
Librarians in law schools obviously carry out legal research and offer legal research instruction, but what about also business schools, or other university departments such as social or political science? Or professors or students in those contexts? Do they conduct research that is perhaps, if not legal research at its core, then peripherally legal? And if so, are they receiving instruction in the research they carry out?
There are also, of course, non-practicing lawyers or other legal professionals working outside the scope of traditional legal practice. For example, such professionals might be part of law reform agencies, or various other non-governmental organizations. Clearly a great deal of research would be carried out by (or perhaps commissioned by) professionals in these organizations.
Research that is legal at its peripheries might also be carried out by authors (i.e. apart from authors of legal textbooks; rather, authors of books that might touch on aspects of the law), or by researchers working in politics.
But can you help me think of others who do or provide instruction in research? And the follow-up question to which this leads is what the particular needs of these communities of researchers are, and to what extent they are met by the resources that exist. For example, is there a reliance (or over-reliance) on general web searches or cursory print material review? And to the extent those conducting research in these other contexts use specialized legal research tools, such as secondary and primary print materials or either free or proprietary electronic legal databases and web sites, do they use primarily print or electronic resources? And do they using them with training, or “off the cuff”? Or do they not use specialized tools at all, perhaps relying instead on the experience of or consultation with others? And, finally, depending on the answers here, is there more that specialized legal researchers (such as research lawyers and law librarians) can or should do? Opportunities? Obligations?
So, I’ve raised just a few questions. Now I’d love to hear your thoughts!
I think ‘legal research’ is ultimately performed by one who can be sued for legal malpractice or even lose his or her license to practice law if things go wrong. If these person(s) choose to rely upon other person(s) in performance of research task(s) they do so at their own peril.
An interesting question, Kim.
I hear from those in large law libraries that are somewhat open to the public, such as academic law libraries, that they get a number of pro se litigants–i.e. people who intend on representing themselves in court–trying to do legal research. I suspect a lot of those people also go to public libraries in their search.
A tool like CanLII was created to make the law more open–I wonder if they know of other groups using their tools for research.
Eric, what about law librarians doing research on behalf of others? Yes, the lawyer is the one who is insured and has ultimate responsibility, but they are not always the ones doing their own research.
In 1980, I did some research for a grad school term paper on prison education. My tour of the prison included the ‘law library’ which was fairly well stocked and occupied by prisoners researching their appeal(s). In California there are legions of ‘pro se’ litigants many of whom are ‘vexatious’ performing legal research 24/7 to reach goals that only they may have some understanding. In 1982, I performed legal research as a law clerk for a large firm which had a full floor of books and a single Lexis terminal. The four librarians clipped newspaper articles, among other things, topical to cases the firm was litigating. In most states, research/writings on civil/criminal procedure is complied in volume texts by learned authors to assist others in using the court system. The Rutter Group three-volume set in California is the best I have seen/used. A lot of people are talking about the value of outsourcing legal research and even brief writing to places like India. I’m not entirely sure why as there are also legions of lawyers both in the US and Canada who would likely perform the same work just as cheaply and from what should be a better platform. So its been my experience that a lot of people (as well as machines) perform legal research for their own self-interest, for the interests of others, to harass, vex, to educate, to make money, etc. But the point I was trying to suggest in my first comment was that the person who has to ultimately take responsibility for the research employed in court or any other forum is the lawyer or other person ‘authorized’ to appear and present it. If this ‘authorized’ person cannot trust his or her sources of ‘research’, then that ‘authorized’ presenter should perform (to the fullest extent possible) all of his or her own research because in most cases they will not be allowed to delegate the responsibility or possible penalties for the results obtained.
While I was getting my library degree (1999-2002), I had two experiences that clashed with my previous understanding that law librarians did legal research.
– In my “law library management” course, I visited and interviewed the librarians at a major DC law firm. Associates did legal research, while librarians did business and other factual research. One librarian was the full-time conflict-of-interest analyst for the firm, doing business organization research.
– I did a practicum at the Jacob Burns Law Library at George Washington University. My most significant research tasks were bibliographic (for the library itself) and business news for a professor.
Now, as a public services librarian in an academic law library, I do little targeted legal research. I monitor many sources for a blog I co-edit (http://lawprofessors.typepad.com/adminlaw/), do bibliographic research for faculty and student authors, and teach particular aspects of legal research, but I don’t do legal research in the sense we usually use the term. Faculty members (with their student research assistants) and students writing papers do their own legal research, coming to the librarians when they hit a wall – more often than not a general rather than legal research problem.
Compared with what I observed as a new lawyer in the early 1980s, law librarians are now less legal researchers (although they are still the go-to people for identifying legal research resources and skills) and more “everything-else” researchers for lawyers who are unfamiliar with the universe of information beyond the law.
I have to agree with Ted above. But a smarter approach is outsourcing any type of research whether it be law, marketing, or some sort of analytical report. It is not cost efficient in my opinion and I believe most young lawyers, paralegals, and also assistants could be more uselful and productive doing other things persistant to their career.