Although my current work focuses more on knowledge and information management, I have in the past worked more formally as a research lawyer and I currently work with and know many others who work as research lawyers.
Based on recent discussions with colleagues on the role of legal research lawyers, I thought I would re-visit the topic and update my thinking in light of the changes in the economy and technological developments.
Just over 5 years ago here on SLAW, I posted Legal Researchers in the Year 2020 (30 November 2005). In that post, I discussed the likelihood that technology in the year 2020 will have changed sufficiently to make the finding of law-related information easier. I also discussed the challenges that research lawyers face in law firms (such as whether they can rise to equity partners), the impact of contracting out of legal research and the relationship between knowledge management and legal research in law firms.
Two years after that, I posted an update in The Role of Legal Research Lawyers in Law Firms (28 November 2007). In that post, I discussed some of the perception challenges that research lawyers face, including the perception that research is somehow “easy” and anyone can do it and that it is not on the same par as substantive law areas of practice (such as tax). There are also the challenges of determining what lawyers should know (and be included in their hourly rate) versus what can be billed to clients for new and required areas of research (i.e., the challenge of “the client doesn’t want to pay for research”). In that post was a good comment on the fact that teaching legal research and writing in Canadian law schools remains a challenge and the lack of proper training in law school may be impacting some of the issues described above being felt within the profession.
Well, where do we stand now?
There is, of course, a bit of plus ça change, plus c’est la même chose: not much has changed.
However, I think there are several developments and I thought I would re-articulate my views on the role of research lawyers.
- A large firm phenomenon: Although there will likely always be a good market for individual solo-practitioners to market their services as research lawyers to lawyers and in-house legal corporations, the “luxury” of having a research lawyer within your own law firm assumes a larger firm since most law firm research lawyers act for other lawyers at the firm and not necessarily directly with clients. As a result, law firm research lawyers generally need a large body of lawyers within the firm who need research done. This of course raises its own challenges about how to build a research department within a large firm and the challenges of making the business case for such a department, the need to market one’s services, and so on.
- Students versus lawyers: To the extent that Canadian law firms will continue to hire articling students as apprentices, the reality is that such students play an important role in conducting legal research in law firms. In theory, the students – fresh from law school – are good at research and have lower billable rates that make them effective. However, the reality is that research lawyers with more experience will often be able to render an opinion more cost-effectively due to their experience. As such, in many situations, the model will be a combination of student-generated researched augmented by one or more research lawyers providing opinions on more complex nsactions or otherwise playing a supervisory role over the research being done by students.
- Demand for research continues: Although technology improves, it will unlikely improve to the point to eliminate the need for the skills that research lawyers bring to their task. These skills include knowledge of sources, technical/computer search skills, analytical reasoning, and the ability to render opinions in difficult circumstances. And since “the Law” will remain complex, ever-changing and often contradictory, and since no single lawyer can know “the Law”, there will always be issues that need to be researched. I therefore remain optimistic that there will continue to be a need for good legal research lawyers.
- Research as a career? Despite the optimism in the preceding paragraph (that there will always be a need for research lawyers), there is some uncertainty in the Canadian legal research lawyer market whether the existing senior research lawyers at large firms who are partners will be replaced by more junior research lawyers who will in turn rise through the ranks to partnership. The reality instead appears to be that senior research lawyers tend to evolve into “opinions” lawyers or “trusted advisors” within their firms since the hands-on legal research can be done more cost-effectively by junior lawyers or students. A more realistic view may be to perceive research lawyers in important but albeit non-partnership-track positions. For most Canadian colleagues working as research lawyers, the trend appears to be that they evolved into such positions after having practiced in other areas or done other things. This has the advantage of bringing some experience (and judgment, or so one hopes) to the task of being a research lawyer. This is not to say, however, that a young lawyer could start his or her career as a research lawyer and there are numerous examples of where this has been successful.
- Outsourcing: Although the outsourcing of Canadian legal research to off-shore firms or to cheaper “in country” temp agencies seems like a logical solution, my sense is that many large firms will continue to invest in retaining their own legal research lawyers to help ensure and maintain internal capacity. In addition to the actual research being done, research lawyers play valuable roles in other ways such as training/mentoring students and other lawyers, developing in-house standards and precedents, working on opinions, advising the firm on risk management or conflict of interest issues, and the like (consistent with my view that research and knowledge management should be truly integrated activities). These ancillary functions would often be lost in the absence of there being an internal research lawyer. I also continue to myopically think that there are “local” advantages to be found that “off-shore” or remote researchers would be unable to leverage. These local advantages could be as simple as knowing the reputation of a local judge versus having access to print resources that are unlikely to be easily found or accessed by off-shore or remote researchers.
Those are my thoughts for now. Ten years from now? Who knows? One consistent thing I have noticed among research lawyers is that they/we share the common characteristic of the love/need to solve problems (and the need to simplify complex problems). The challenge of starting with an issue or problem that seems insolvable and then applying one’s skills to uncover a likely (or “the” likely) answer is extremely satisfying on an intellectual level. This is not to say that only research lawyers have this trait compared to other lawyers; however, with research lawyers this characteristic tends to dominate.