Legal Research and Writing Skills in Law School
Next week I will have the opportunity to join with a number of colleagues on a panel to discuss with law school students the importance of legal research and writing, largely in anticipation of them becoming lawyers on graduation and needing to have certain skills in order to excel in their profession (and I think it is great that this law school is making this kind of session available to students).
One of the questions put to the panel in advance of the session was: “What kind of legal research skills should law school students be highly proficient in by the end of second or third year of law school?”
In recent years, I have started to have higher expectations of law school graduates and in many situations those expectations have been met.
However, the perennial problem remains: many law schools do not teach legal research and writing well, usually to no fault of the dedicated adjunct faculty or law librarians who often care quite strongly about the topic.
Although what follows is an over-simplification of the issue, here are some of the systemic challenges that highlight this problem and some proposed solutions:
- Casebook method: In first-year law, most students are given their reading material, often in the form of casebooks, lessening the need for them to “find the law” on their own. In addition, there is an emphasis in law school on case law over legislation (perhaps understandably so – cases make for more interesting reading). This emphasis often results with law school graduates being much less familiar with legislation and how to find it.
- Theoretical approach in law school: Many law schools emphasize the theory of law and are generally much less concerned with the nuts and bolts of legal practice and the practical tools that lawyers will need (exceptions exist, of course, such as the opportunity for students to work in legal clinics during law school).
- Lack of course credit: In first year, many – if not most – North American law school programs do not teach legal research and writing for course credit (in the same way that the other substantive first-year courses are taught). As a result, students will naturally focus on the “for credit” courses.
- Lack of qualified instructors: Most law schools do not employ full-time, tenured professors who are qualified to teach legal research and writing. This adds to a perception that legal research and writing is not as important and also results in a more disjointed curriculum on the topic. In many situations, competent practitioners or law librarians teach these courses, which helps, to a certain extent.
Despite these challenges, law students have a number of opportunities to develop their legal research and writing skills:
- Small group classes: In first-year, each law student is typically slotted into one “small group” class. In some situations, depending on the professor, the small group program may allow for students to learn about and apply some basic legal research and writing skills.
- Essay/paper assignments: In upper-years, most law students will take elective courses with essay/paper requirements requiring original research and appropriate writing format/McGill Guide citation.
- Mooting: Although many mooting programs in law school provide students with “canned” material, some programs require students to spend a fair bit of time researching the law and writing a proper factum in support of their oral arguments.
- Upper year “Advanced” legal research and writing courses: I always encourage 2nd-year law students who have “summered” at a law firm to consider taking an Advanced legal research course in their final year. For those students who did, to a person, they have thanked me for the advice and were very glad that they did. The irony, of course, is that these upper-year courses are often call “Advanced” when in fact many students will not have received the “basics” in first-year.
For students who have graduated law school and are starting to article at a law firm, government department or corporate legal department, these are the following legal research and writing skills I would expect them to have:
- Analysis: I expect law school graduates to be able to analyze legal issues and be able to determine legally relevant facts given a particular problem.
- Secondary resources: I expect law school graduates to be able to find leading and relevant treatises, journal articles, CLE papers, and encyclopedia articles. They should also be familiar with Words and Phrases services.
- Cases: I expect law school graduates to be able to find cases by topic and by citation and to effectively note-up cases and be able to analyze the note-up results to prioritize the citing cases. To find cases by topic, I expect them to be able to do so in one of many ways before they search full-text on an online case law database (e.g., they should know how to use case law digests, how to mine the footnotes in leading treatises and journal articles for leading cases, and so on).
- Legislation: I expect law school graduates to be able to understand the division of powers, the legislative process, and how to find and note-up legislation. Ideally, they will also be familiar with basic statutory interpretation. I also expect them to be able to find cases considering a particular section of a statute, regulation or court rule.
- Online searching and information literacy: I expect law school graduates to be able to effectively search the major online commercial databases and to know how to evaluate the reliability of free sources of online information.
- Writing: I expect law school graduates to have strong writing skills and to be familiar with memo and factum writing. I also expect them to be familiar with the current version of the McGill Guide.
What I have missed? Am I expecting too much? What should we expect of law school graduates?
I welcome comments, which I of course will factor into the discussion at the panel session next week.
This may be a footnote to writing, and is also related to KM in general, but with the recent explosion of e-books, students will soon be feeling the need to efficiently move text out of books and into the electronic working environment.
Previous the the last couple years, this problem was submerged, but now I think a solution will be sought. Can we expect, or at least encourage, law students to develop an effective working routine that enables efficient bridging of the paper-electronic text gap?
Blackstone faced with the same issues seemed to put equal weight on the quality of education the law student should have prior to undertaking the study of law. (gender of no consequence).
Blackstone, Commentaries on the Laws of England, v. 1, 1765, pp. 33-34
“The inconveniencles here pointed out can never be effectually prevented, but by making academical education a previous step to the profession of the common law, and at the same time making the rudiments of the law a part of academical education. For sciences are of a sociable disposition, and flourish best in the neighbourhood of each other : nor is there any branch of learning, but may be helped and improved by assistances drawn from other arts. If therefore the student in our laws hath formed both his sentiments and style, by perusal and imitation of the purest classical writers, among whom the historians and orators will best deserve his regard ; if he can reason with precision, and separate argument from fallacy, by the clear simple rules of pure unsophisticated logic ; if he can fix his attention, and steadily pursue truth through any the most intricate deduction, by the use of mathematical demonstrations ; if he has enlarged his conceptions of nature and art, by a view of the several branches of genuine, experimental, philosophy ; if he has impressed on his mind the sound maxims of the law of nature, the best and most authentic foundation of human laws ; if, lastly, he has contemplated those maxims reduced to a practical system in the laws of imperial Rome ; if he has done this, or any part of it, (though all may be easily done under as able instructors as ever graced any feats of learning) a student thus qualified may enter upon the study of the law with incredible advantage and reputation. And if at the conclusion, or during the acquisition of these accomplishments, he will afford himself here a year or two’s farther leisure, to lay the foundation of his future labours in a solid scientifical method, without thirsting too early to attend that practice which it is impossible he should rightly comprehend,he will afterwards proceed with the greatest ease, and will unfold the most intricate points with an intuitive rapidity and clearness.”
I don’t think your expectations are unrealistic, Ted.
I’d even go so far as to say most articling or clerking students I’ve worked with can do those all of those things. My sample over the years might not have been representative, though. Many of the clerks were research-focused in law school, and articling students I worked with often previously had taken summer or co-op positions where they would have honed these skills before graduating.
For many graduates, it seems a challenge is that programs such as the one John describes (which sounds excellent) will have been oh-so-long-ago by the time the students graduate.
This is where advanced legal research and writing courses offer an excellent curriculum component. (Disclosure: We teach one at UVic, where I work.) Research and writing skills can be expected to mean a bit more to upper year students, I’d think. Similarly, programs such as Head Start by Edmonton Law Libraries Association, and probably others, give students the refreshers and contextual reinforcement they might need by graduation time.
I should point out that, although I am a librarian at UVic now, the experiences I described above date from when I was a large firm research lawyer or legal counsel at the courts.
Ted,
I agree with your points. However, I do think you are missing something. I do not believe that law firms themselves have done a very good job in explaining to prospective articling students how important legal research is. When I’m helping students with legal research after they have done their interviews with a firm, one of the things I sometimes ask them is if the firm asked them how proficient their legal research skills are. In most cases (with a couple of exceptions), none of the firms have asked them. It is only when they get out to article or summer at a firm that they realize how important research is. I’m not trying to blame law firms per se. I certainly do not blame the law firm librarians (who work hard to try to get the students to be much more proficient and comfortable with research. But, if the firms explained to the students that they valued legal research, perhaps more students would take a better interest and improve their skills.
I know at Osgoode (and I would imagine at other law schools), the librarians try to explain to the students how important legal research is to their future careers, whether in a firm or doing something else. Osgoode has also started to get lawyers to come in and try t explain the value of legal research in their practice.
I am teaching Advanced Legal Research at the University of Manitoba for the first time this year (it had been offered in previous years, but by another instructor). It is an elective class open to upper year students. I share your expectations of law school graduates, but I would note that in our school, my course enrolment is limited to 30 students. The former instructor, who was a faculty member, was able to offer the class twice, catching 60 students. I am concerned that the rest of the soon-to-be-graduates will not be as prepared as those attending my class. However, a legal research ‘refresher’ seminar is generally offered by the law school in March. The Manitoba Bar Association’s Legal Research Section, in conjunction with the Law Society, has also instituted a legal research boot camp for incoming articling students, modelled on the Edmonton Head Start program. However, that program is limited to 60 attendees. So I hope not too many students are falling through the cracks. At the same time, I think that once the students graduate, the Bar Association can play a significant role in helping students improve their research skills (such as through a Legal Research Section). (Disclosure: I am the co-chair of the MBA’s Legal Research Section).
What I frequently see lacking in articling students and first years are practical skills.
These include:
– researching on a budget. Not every file can stand forty or fifty billable hours to get to a conclusion, sometimes I need the best answer you can give for $1000
– writing a clear conclusion, without weasel words or unnecessary equivocation
– learning when to stop doing research. Sometimes there’s no answer – a section of a statute has never been considered, or whatever, a student should be capable of saying “I didn’t find anything”.
Time to be a bit contrarian.
Anybody here care to tell me in what *relevant* way the *process* of legal research differs from research in any other recognized field of learning?
If you can’t do that, then with respect, perhaps it’s because there isn’t one, given the manner in which you’ve defined valid.
If there isn’t one, perhaps that’s because there’s no truth to the claim that valid “thinking like a lawyer” is somehow a process that is qualitatively different than valid “thinking like a [insert the field the law student ostensibly earned his or her undergraduate degree in, where the student has one]”.
If there’s no truth to that homily, then shouldn’t we be asking why there’s the perception that too many law school graduates lack both adequate skills in the process and adequate knowledge of the sources.
That’s unless, of course, one agrees with Murphy (no, not that Murphy) about the meaning of legal logic in JG Murphy “Law Logic” (1967) 77 Ethics 193. Or the comments of Lord MacMillan about 80 years about the type of mind best suited for common law legal analysis. The essay is called “Two Ways of Thinking” You’ll find it and other essays worth reading by Lord MacMillan here starting at p. 76. (And, of course, there’s always my favourite: Lord Halsbury’s dictum in Quinn v. Leathem). However, somehow, it strikes me that most members of the legal profession, today, would prefer to deny that these views are right (at least for public consumption).
The other side of the issue, from the perspective of the newly-minted lawyer, asked to do some research for a supposedly more experienced practitioner is this. If the person needing the research done isn’t able to identify the major sources that should be consulted first, and doesn’t provide them to the “researcher” then the former shouldn’t have been the person asking the question in the first place. And if that person is able to identify the major sources, then one wonders why her or she hasn’t already consulted them to see if there’s a part of the answer there to provide to the designated researcher.
DC
I’ve been reluctant to wade into this discussion because it does cover ground gone over many times. However, . . . upon reflection I have these thoughts about the issue.
First, thanks to Rick for the posting referring to Blackstone – well done!
And thanks to all the others that posted comments, I enjoyed reading them all, and learned from doing so.
My first response to Ted’s posting is that it is all sound information and nothing startlingly new – I take it to be somewhat provocative, so stir up some debate and interest in a big problem in legal education.
Still, it is a kind of “town and gown” argument – those who work with lawyers and articled students state law schools aren’t doing their job; those in academic saying that the Law Societies and firms aren’t doing their job.
The problem really boils done to the reality that legal research is very much a skill, and like any skill if you don’t practice and use it, then you will lose the skill and have to relearn some of it. Easy for law librarians and research lawyers, not so easy for lawyers and articled students that have other things to do.
In defence of LRW instruction in law schools, at least from the point of view of law librarians, I should point out that we work at universities, and as such we have to make sure our students know how to do academic research and writing, as well as how to do practical legal research and writing – something colleagues in the rest of the university libraries do not have to contend with, unless they also work in professional schools.
That’s is a tall order with the limited time available for any kind of instruction in law school.
But we try to do our best and I think are getting better all the time.
The real solution, as I see it, and other commentators have pointed this out, is that LRW instruction should be shared or collaboration upon between law schools, courthouse libraries, law societies, etc, through things like “Head Start” programmes or “boot camps”. Technology no longer requires that instruction in law school needs to be done only by law professors and visa-versa. It needs to be integrated from 1st year law, through articling, and then practice.
It won’t make everything perfect, but it does make more sense.
One last thing about LRW that one of my colleagues pointed out – at least in law school – its the course you should take because it is about all the other law courses you could not take at law school.
Neil Campbell
Faculty of Law
University of Victoria