From the Trenches

Daily routine in the trenches of an active legal research practice affords little time for exploring technological innovations in the legal field. Alas, I am therefore often left in the dark even after reading posts on Slaw about such technology. I’ve confessed my confusion and ignorance to Simon F, and he has responded by encouraging me to give a different perspective on issues that surround legal research and technology.

I acknowledge that much of the research I do can be, and often is, conducted by searching online legal databases, as well as internet sites and search engines. In particular, the availability of law from other jurisdictions, both case law and legislation, has increased remarkably over the past ten years, improving the quality of our own research product in Canada. It also wasn’t that long ago that the librarians in our firm and elsewhere were debating whether legal publishers would continue to develop CD-ROM products or would convert to internet-based applications.

However, the urgency that often accompanies requests for research, and the demands of the billable hour combined with the many non-billable tasks that end up in the research group, leave little time for the interesting, but not immediately applicable, intricacies of emerging technology. The majority of my day is still spent reading, thinking, and writing, rather than in front of my computer.

It may be of interest to those of you who do not practice research law, that the textbooks and loose leaf editions, and yes, even the hard copy of the encyclopedias and Words & Phrases, are still used on a daily basis. Browsing and musing are still essential research skills that extend one’s searching and analysis outside of the box, compared to the narrowness of online searching. We need to understand the scope and limitations of the technological tools available to us, but the focus, at least in my practice, remains on the substantive law and its application to the factual circumstances and needs of the client, who is paying for the research and resulting product, whether it’s a factum, brief, opinion letter or memorandum of law.

I would be interested to know if other research lawyers’ experiences are similar to mine, in relation to keeping current with technological innovations. I enjoy reading the posts on Slaw immensely and thank those who contribute regularly. I suspect many of us are kindred spirits as we bemoan the shrinking hard copy libraries, public and private, while at the same time enjoy the efficiencies that the digital world offers. Without Slaw, I would be even more hopelessly behind in what’s happening in technology and law. Thank you, all, for keeping the rest of us informed!


  1. Thanks, Brenda, for perfectly articulating my attitude to both legal research and Slaw. I am aware of a huge universe out there whose features I can imagine even if I cannot immediately know how to examine them. I am very grateful to the contributors to Slaw for giving me glimpses of worlds I did not know existed, though I am frustrated by the fact that doing what I have to do denies me the time I’d like to have to explore.

    I am terrified of the day when print materials will, if not disappear, be greatly diminished. Much of what I distil from current developments, I get from turning over the pages of a law report or journal to see what is there. (Printing off a case or individual article is not the same as having that case and article as part of a larger collection.) If I had to depend on what someone else thought fit to identify as a category that might interest me, I would miss a great deal that I now find important. (By the way, has anyone ever looked at the curious “catch words” that are shown in grey on a CanLII list of search hits? There are often some very odd words indeed.)

  2. Brenda and John,

    Thanks; I also agree with these comments. I certainly am not a technophobe and consider myself quite capable with electronic tools (a bit of a geek, really) and was an early user of the Internet, but I do have a sense of working with one hand tied when using only the computer for extended periods of time.

    I was at the very interesting and informative NE2007 Libraries Without Borders conference last week, and this issue came up a few times in various contexts. One was the seemingly neverending question of how to encourage students (or the Google generation) to use print materials (and also as contrasted to electronic versions of print products, as John notes) in their research; another example was in a panel discussion among legal publisher representatives about the future of print. There were repeated expressions of the view that print is not going anywhere, nor should it. And so long as we librarians, research lawyers, and law teachers continue to demand print, it will be there, and we have to continue to rise to the challenge of encouraging newer researchers to see the value of print resources. Equally, like Brenda and John, I am in awe of fellow Slawers who have such breadth and depth of current knowledge about what’s new out there: I appreciate the pointers and informative notes on new tips, tools, and resources. (e.g. Simon F.: Thanks for the note about Buzzword! I think it’s great and I have been using it regularly when working on drafts.)

    Cheers all,

  3. I figure we don’t *all* have to keep up with the bleeding edge of technology. Let a few of us so inclined play with it and weed out the best for you. Comparing notes with a colleague who similarly tries and plays with everything, we rarely come up with the same tools. There are just too many to know about everything.

  4. Alejandro Manevich

    Coincidentally, the following article found its way into my inbox yesterday, courtesy of the SSRN mailing list:

    Ellie Margolis, “Surfin’ Safari – Why Competent Lawyers Should Research on the Web” (2007) 10 Yale J. L. & Tech. (forthcoming),

    The paper discusses what should now be considered a minimum competency standard for legal research, focusing in particular on what should be expected of lawyers with respect to research on-line (both Internet and legal services such as Lexis).


  5. Thanks Brenda. Good comments. I have been toying with the idea or concept of “knowledge coaching” as a sort of up-dated version of “information literacy”. I realize both terms are quite vague and risk emphasizing online resources over print resources but true information literacy training should impart evaluative skills to the learner for them to know when to use and how to evaluate print versus online in addition to imparting the technical skills at using law-related print or online materials (in fact it seems strange to see a need to teach technical skills in using law books but I often try to include this topic – for example, as many SLAW readers will know, a good legal treatise will have a Table of Cases and a Table of Legislation (in addition to an index) that will provide an alternate access point into the text – I am not sure law students will necessarily know this intuitively, hence the need to point it out).

    As for knowledge coaching, I suspect it is perhaps different than information literacy to the extent it suggests the need to show users how to use knowledge management resources (many of which will of course be online, such as databases of model and precedent agreements) but I still think it is broad enough to cover information literacy as well.

    Note to John Swan: while typing the foregoing, a copy of your book, along with Waddams and Fridman, were each open on my desk while I am in the midst of considering a contract issue (on severability). There is no way that online resources would have been a quicker or better approach to getting the information I needed. Your book seems well-indexed.

  6. One of the dangers that I see from the arguments made in the article referred to by Alex is that judges may be tempted to go searching for themselves. It may be proper for a judge (or his or her clerk)to check whether counsel have referred to all the relevant cases but, if they have not, and the judge finds one that he or she thinks may dispose of the issue, it is strongly arguable, whether the omission to cite the case is the fault of counsel or not, that the judge should call counsel back and invite them to address arguments to the court to deal with the new case.

    If a judge goes beyond digging for cases and into the wilder realms of the Internet, he or she risks undercutting the nature of the judicial process. That process is characterized by the right of the parties to present facts and reasoned arguments. If the judge goes looking for facts—whether they be ones special to the case or ones that may help him or her to discover background facts—or comes up with arguments that counsel have not addressed, the process is compromised and, in an important sense, the parties have been denied natural justice.

    The existence of the far wider range of sources from which counsel may find facts or ideas for argument may make it harder for counsel to fulfil his or her duty to the client, but the efforts of counsel to fulfil that duty come at a cost. Litigation is expensive enough without adding costs—and I am not just thinking of the direct costs of on-line research—where the marginal utility may be small.

    In other words, there’s a fine line between adequate research and research that costs more than the client—or the other side—can reasonably be asked to pay for. It’s worth noting that cost awards are now being considered in the context of what the losing party could reasonably have expected to pay. There is, of course, the ever present danger that assessment officers will not allow costs incurred in “surfing the net”.

  7. I think it’s no longer safe for judges to assume that what they’ve received from counsel is (1) the relevant law and (2) the up-to-date law unless (3) the judge knows the lawyers enough to make the assumption or (4) the judge already knows enough about the area that the judge knows what’s current.

    It might have been true, once, that judges could assume they’d learn from the “purifying ordeal of [counsel’s] skilled argument”: see, for example, Heward v. Eli Lilly & Company, 2007 CanLII 2651 at para. 25 (Ont. S.C.J).

    Now? One is too likely to see cases which are marvelously reasoned – but are entirely wrong in result because there was already binding precedent the other way which, seemingly, neither judge nor lawyers knew about AND, in any event, none got what the issue actually was. Or, one will see cases in which the judge refers to a long list of cases – some appellate, some co-ordinate, all of which deal with the point in issue – and concludes with the line that since neither counsel cited the binding authorities, let alone any, nobody gets costs.

    What’s the judge to do? He or she is obliged to make the right legal decision. Counsel’s incompetence is no excuse. But the parties are still entitled to input and the judge can’t decide in somebody’s favour on an issue not raised by one side to which the other didn’t have a chance to respond. So, I think you’re right. If the judge finds a significant case, not mentioned by counsel, he or she has to call the lawyers back in; or ask for additional submissions in writing. If that makes the process more expensive, so be it.

    I appreciate that it’s a fine line where the new issue is case law, but that’s what judges get paid to do: decide issues.