Teaching Law School LRW

Ted Tjaden’s post today on “Legal Research and Writing Skills in Law School” could not have been more timely for me and my colleagues at the Bora Laskin Law Library.

For the first time that anyone here can remember (*however, see comment 3 below), the UofT Faculty of Law is offering a stand-alone mandatory legal research and writing class for its incoming first year class. It is a 10 week programme of hour-long classes that attempt to address many of the challenges that Ted outlines. This programme was long in the making and was driven by the Law School’s Standing Curriculum Committee and ably marshaled into place by our Assistant Dean Sara Faherty and a group of faculty and librarians.

The first week was taught by faculty member Simon Stern, who is passionate about LRW. The subsequent nine weeks will be taught by Sara, four legal writing instructors (doctoral students – Gail Henderson, Hélène Maynard, Mike Nesbitt and Mike Pal) and three librarians (myself, Susan Barker and John Bolan), thereby exposing our students to experts in writing and analysis as well as in the process and tools of legal research. Classes will be taught in small groups of about 15 students, with a combination of lectures, in class exercises, and hands-on computer lab instruction.

It is early days for our programme and it will be a challenge to address all of the issues that Ted outlines. For example, we expect that by the end of the programme that our students will be familiar with writing a memorandum of law, but finding room to teach about CLE materials and “words and phrases” services will be a challenge. The programme will give students a foundation in LRW that still leaves lots of room for our instructors in the upper year Advanced LRW classes, and our law firm librarian and research lawyer colleagues to build on.

Still, our programme is an exciting start for UofT and an important step in addressing the concerns expressed by Ted and so many of our law library and research lawyer colleagues.

Comments

  1. Any input from the practitioner side of the profession?

    David

  2. Glad to hear that the LRW course is introduced at UofT and good luck with teaching it everyone!

  3. It looks like there was indeed a mandatory 1L legal research course at the UofT Faculty of Law prior to the one we are offering. My colleague Richard Potter remembers a mandatory course in 1962 taught by the librarian Prof Richard Rank.

    I worked through my collection of law school calendars and found that in the 1955-56 through to the 1960-61 academic years there was a mandatory “Introduction to Legal Writing” course. The syllabus describes it as “A course designed to cultivate the power of written expression and to develop facility in legal research”.

    In the 1962-63 term “Introduction to Legal Research” makes its appearance and is taught by the new librarian, prof Rank who may have been the school’s first professional librarian. The class continues to at least 1965-66 and is taught by the great Diana Priestly. I lose the trail here as I have no calendars handy between 1967 to 1988, but I will look around and see what I can find.

  4. There was a LRW component to first year at U of T when I was there in the 70’s and 80’s. It was done both by the library staff and as part of what was then called the “small group” component of first year.

    I have always had strong misgivings about the value of much “legal research” instruction early in a law student’s career. When I taught my own first-year small group, my practice was not to push that component of the curriculum in first year but to meet with those who had been in my small group when, in second year, they were assigned their moot problem. They then had a concrete problem — well, as concrete a problem as there can be in law school — on which to work so that, rather than doing research in the abstract, they had an actual problem to deal with.

    I think that that it is a mistake to load first-year students with a lot of “research” knowledge; it’s much better to make it a compulsory part of at least second year and even third year. I don’t know, for example, if any school makes drafting agreements or letters — i.e., documents other than memos or factums — a requirement in any course or research instruction. The thinking and research required to draft a good and effective agreement is quite different from that required to prepare an argument or asses litigation strategy.

    I find that the students we get for the summer or articling are excellent at what I can call the technical aspects of research. They are, however, inadequately trained or exposed to the kind of problems that they will have to face in practice.

    In my opinion, the principal reason for this inadequacy is that law school problems are usually “named”. By this I mean that they occur either (i) in the context of a (named) course, or (ii) as a moot problem on a chosen (i.e., named) topic. Many problems that arise in a firm are not “named” in these senses. Clients have a distressing habit of saying something like, “help me, please, because this awful thing has happened to me!” or, “can I do this?” Their story is unlikely to use legal terms.

    Two consequences flow from these facts. The first is that students have to understand that the client’s problem won’t be “allocated” to a legal category until they do it. They have to decide: which text do I look at? Is the client’s problem a contracts one, a torts one, or a corporate one? And, if they choose one, they may still have to pursue the other or others. It’s a great mistake to choose too soon.

    The second is that, at this stage, looking on-line is likely to be useless. It’s useless because in an important sense, the student (or lawyer) does not know what to look for. This fact then requires the “searcher” to stare at the wall and think. What does the client have to worry about? Where might I find some help? What causes of action might the client have?

    At this stage, the searcher has to wander in the library, picking up this text and that text, looking in this index and that one, checking journals, etc. As one grows in experience, this process may be short-circuited because a good memory of the cases may lead one to the “magic” case. It’s depressing to realize how much of legal research — and, I suspect, to pick up on one of David Cheifetz’s points, all research — is characterized by serendipity.

    There are, of course, important research topics that are wholly unsearchable on-line. Perhaps the most important of these are expressions of the courts’ attitude to various things. I wonder how much formal “research” instruction takes account of this fact. With experience, one understands that knowing the attitude a court will bring to a particular issue is perhaps the most important fact to have discovered.

    There are techniques to deal with some of the problems the young lawyer will face. One is to realize that there are what I can call “default” rules that make research much easier. For example, there is a default rule that any contract without term can be terminated on reasonable notice. (It’s not an absolute rule, but it’s a pretty general one.) If the researcher has to deal with a problem whether an agreement can ignore the desirability of a termination clause or whether an agreement can be terminated with notice, the identification of the default rule (and the Supreme Court case supporting it) makes research fairly straightforward. Knowledge of the courts’ attitude is another kind of default “rule.”

    Another technique, if I can call it that, is to accept that there will sometimes be no cases on the topic. I always comfort the students who come to me when this happens with this judicial statement:

    Th[is] case must have occurred a thousand times, but the reason why counsel, who argued the appeal, were unable to cite any authority directly bearing upon the question, is probably that, until this case arose, there never was anybody wrongheaded enough to make such an accident the subject of an action at law

    .

    Russell J. in Mackenzie v. Scotia Lumber Co. (1913), 11 D.L.R. 729 (N.S.S.C.).

    (I am grateful to my friend, Jakub Adamski, who found this case for me years ago.)

    Over the years I have developed a personal database of cases — it was an important source for my text. One index heading is “APC”; APC stands for an “all purpose case.” Students think that it is heretical to have an all purpose case — how can there be such a thing? — but, with experience, comes the realization that sometimes one just needs a case in which a judge has said something sensible and at a general enough level to be useful in many different situations. When I am asked to “find a case” by a litigator off to court in 30 minutes, I turn to my collection of APC’s.

  5. With regard to David’s comment above: Reed’s survey of the formative systems of legal education in 1921 in the United States, Canada and England seemed to deal with the some of the same issues which are being grappled with presently.

    Training for the public profession of the law: Historical development and principal contemporary problems of legal education in the United States with some account of conditions in England and Canada by Alfred Zantzinger Reed (Carnegie Foundation)
    Bulletin number fifteen , New Nork City, 522 Fifth Avenue, 1921

    “The professional societies are disposed not to offer instruction when a
    local university is willing to undertake the work.” (p 27)

    “Finally, Canada has not solved the fundamental difficulty that besets all efforts to adapt the ancient
    profession of the law to modern ideals of popular self-government. No
    more than in our own country are these two demands of the democratic
    state fully met : namely, that its lawyers shall be at once educated
    specialists and yet not too far removed from the common people;
    that their course of preparation and conditions of admission shall be
    at once rigorous and yet not beyond the reach of the average man ;
    calculated to produce broadly and thoroughly trained experts, to whom
    clients can resort in full confidence that without undue delay or expense
    they will be honorably and competently served, and yet providing
    an opportunity to all elements of the community to be adequately
    represented in the lawyer class, privileged by law to exercise the primary
    governmental function of administering justice.” P.28

  6. One of my favourite APC comments – perhaps a paradigm because it is also useful when you want to use it for nothing more than atmosphere -is this one. It is somewhat of an echo of the point made by MacKenzie v. Scotia Lumber.

    In the absence of binding authority clearly on point it may reasonably be said that the law is what it ought to be.

    Ontario Securities Commission v. Greymac Credit Corp.(1986), 55 O.R. (2d) 673 at 695, 30 D.L.R. (4th) 1 (C.A.) per Morden J.A.; aff’d 1988 CanLII 56, [1988] 2 S.C.R. 172.

    The SCC didn’t mention the comment, but approved and adopted Morden J.A.s reasons, so the crack has SCC sanction, too.