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.