Legal researchers, what has your bar association done for you lately? What should it be doing? Are you content to join the substantive sections dealing with legal issues you research, or would you prefer to have a special section dedicated to legal research generally? I know that legal research sections have been established in British Columbia, Alberta (North and South), Manitoba and Quebec. Are there any others? In provinces where there is no separate legal research section, why is that? Is there any movement to create legal research sections in those jurisdictions? What about a national legal research section of the Canadian Bar Association? If this niche is not being filled by the bar association, are there other associations out there fulfilling this need (besides Slaw)?
Personally, I believe it is appropriate for the bar association to have a special section for legal researchers. When I left private practice to become a full-time research lawyer, I missed having a section that specifically related to my area of practice. Now that a legal research section has been established in my province, I have new opportunities for meeting like-minded colleagues and honing my legal research skills.
In the interests of full disclosure, I should add that I was the co-founder and am currently the co-chair of the Manitoba Bar Association’s Legal Research Section. It all started when I complained to Darla Rettie, another legal research lawyer in Winnipeg, about the lack of legal research resources available through the bar association. She was confident that, if we got the ball rolling, other legal researchers would come out of the woodwork and get on board. I’m happy to report that, one year later, the section currently boasts 70 members (which may not seem like a lot to you, but it is in Manitoba – especially for a new section) and has held a number of well-attended events in its inaugural year.
So I would challenge research lawyers in other provinces, where there is not yet a dedicated section of the bar association for legal research, to take the initiative and create such a section. I can tell you that the results will be well worth the initial effort. And if you’re interested in teaming up to hold some multi-jurisdictional events or pursue the idea of a national legal research section, please let me know.
Some time ago there was a research section of the old CBAO but it had a tiny membership. It died and I am not aware of any efforts to replace it. There are other groups which bring the research lawyers in the Toronto area together so that I am not sure that—at least in Toronto—there exists a community that a new section would serve.
I return to an issue that I have previously aired on Slaw. I think that there is a huge need to consider very carefully both what legal research will have as the corpus of information to do research in and what kind of standards should be applied in assessing the validity and utility of that corpus.
It has been argued that the legal realist movement in the United States was a response to the decision of the West Publishing Company at the end of the nineteenth century to report all the decisions of US courts. The volume of cases was soon so great as to overwhelm lawyers so that, so it was argued, you could find a case to support almost any proposition, sensible or not. The realist movement retreated into “fact sceptics”—the judge can find any facts he or she pleases to justify any result—and “rule sceptics”—a judge can find in the multitude of cases any rule he or she wants to justify the result that is desired. The end of realism was, of course, the development of the spectacular treatises like Corbin on Contracts, Prosser on Torts and Scott on Trusts, in the articles of people like Lon Fuller and David Cavers, and in the work of the American Law Institute.
Perhaps we are at the point of being overwhelmed by the flood of decisions and, what is more significant, their instant availability. (We are no better off and perhaps even worse off than the early twentieth century American lawyer in terms of the organization of the cases.) The methods that had been used for a long time—the requirement, for example, that a case cited to a court had to have been reported in a published reporter—will no longer work. In any case, the sheer volume of reported cases, in the topical and provincial law reports, offers little selection pressure.
The effects of this deluge are now obvious: many decisions of provincial courts cite only decisions of the province where the court is; many lawyers purchase only the topical report most relevant to their practice; some judges make no effort to analyse the cases, a list of cases cited to the court is simply appended to the reasons for judgment. I justify my own contribution to legal analysis on the ground that, in view of the development I have just described, the need for texts becomes more pressing.
It is, of course, quite clear that courts are very willing to seek help from texts and it is particularly gratifying that there are now many Canadian texts of very high quality. Perhaps the publication of texts will offer a solution to the deluge of cases. If it is to be a solution, there has, however, to be a change in the way research is done. Too many lawyers now ask their students and young associates to find a case, preferably from the local Court of Appeal, dealing with the facts, the exact facts, of the case before them. These requests are in response to lawyers’ belief that only cases on identical facts will be of interest to the judges—and, of course, there has to be at least one case. The power of on-line research makes this search possible—or, perhaps more accurately and depressingly, creates the belief that it is possible to find the required case.
It is not clear to me at what point this cycle could be broken but I believe that those involved in research should focus their minds on this issue. Perhaps law reform commissions could address these developments.