I have been thinking about the great flow chart below that David Whelan created to illustrate this blog post called “Law Libraries and Legal Malpractice” from 2014:
Image credit: David Whelan, “Law Libraries and Legal Malpractice”, https://ofaolain.com/blog/2014/07/04/law-libraries-and-legal-malpractice/.
He even went so far as to claim that “Lawyers do not need law libraries to be competent” (shocking, I know).
It got me thinking about something I’ve noticed working in legal information: lawyers don’t mean the same thing when they talk about legal research as librarians do. Lawyers tend to refer to the entire process of research that forms the basis of forming and communicating an opinion in a matter where an answer isn’t known yet. This may include activities like looking in books, but almost always involves asking colleagues for input and writing something about the state of the law, which librarians tend to exclude.
I agree with David, that most legal research follows the right branch of the flow chart, not the officially endorsed workflow on the left. Partly this is divided by area of practice: I have observed few solicitors doing much legal research using commentary, though junior associates and articling students do more. Litigators are in my experience much more likely to use library resources to do research regularly, partly because they often work in unfamiliar areas of the law and need more background.
This leaves the majority of research in larger firms to be done by students, and there are continuing and longstanding complaints about law students’ research skills, such as this article from 1969 that David referenced in his blog post. In contrast I found the law students I worked with to be quite good at research overall, which I’m sure reflects well on them, improvements in legal research instruction in law schools nationally, firm hiring practices, and perhaps on my teaching. This meant that anything that came to me tended to be something that was so obscure that it was not discussed in any major works of commentary, clearly outlined in any readily findable primary law, and that no likely person in the firm knew the answer. Which meant that my experience of legal research was not representative of the average query.
In obscure cases like these it is valuable to have an extensive collection, as the information might be somewhere in there, but it skews the perceptions of library staff on what common research needs are in practice. Because of this, it is unsurprising if librarians tend to focus on the process of finding materials going through different types of commentary and primary law sequentially as defining proper research.
It is likely that the fact that the majority of libraries’ budgets are spent on the materials further down this process affects this too, though it is important to remember that until relatively recently access to primary law was one of the most expensive elements of any legal practice’s information needs. It is only developments in computing, the scalability they make possible, and people with vision for how to use them that has made it possible for cases and legislation to be marked as free on that flow chart.
It is a mistake to assume that senior lawyers who have (presumably) been taught how to do research in the officially sanctioned linear fashion and decided not to are not practicing correctly. They are making informed decisions on the best use of their time and the best way to serve their clients.
All of which leads me to wonder what proportion of research needs can be answered with a more limited number of tools, such as CanLII and a topical text or two, or a single subscription to one of the big online services. This seems to be the business model for Lexis Advance and WestlawNext: they are attempts at developing platforms that flow so smoothly into commonly used research tools, that lawyers don’t need to go outside them to try anything else.
That said there are certainly research questions that need more than that too. I have been thinking about what kind of value could be put on improving the information behind legal advice, and you can see some of my thoughts about it here. It doesn’t take very much improvement in quality of information to make large differences in value of legal maters according to my model.
I would posit that this combination of most legal matters requiring relatively minimal research and a small number or matters benefiting from extensive resources is an excellent argument for libraries: they pool costs and resources so that they provide what’s needed and share costs across all potential users who will use different portions of what’s available as they need it.