The idea for this column arose from discussions at a recent meeting of a research lawyers in Toronto. This column takes a slightly different path from our banter at that meeting but, in essence, rests on one of the same themes: the role of research lawyers in firms today.
As we all know, over the past several decades it has become not uncommon for law firms of various sizes to have in-house research lawyers. Similar functions to those of law firm research lawyers are also carried out by dedicated individuals in government departments, courts, tribunals, and other organizations; these persons are often referred to as advisory lawyers, counsel, or some other term conveying the same meaning – to provide advice to their colleagues rather than directly to external clients (although they may do that also).
One of the questions that arose at our meeting, which I’d like to repeat here, is whether the position of research lawyer is still alive and well – or, indeed, if it ever really was. Do law firms have a need for internal research lawyers? If so, has that need diminished or increased over the years?
Some might argue that the wider availability – ubiquity, perhaps – of on-line research resources and databases now as compared with a decade or two ago has made the formerly specialized skills of the research lawyer redundant. In essence, the argument might be that the outcome has been what Google has done for Internet searching. In relatively earlier times on-line searching was expensive, generally being strictly time-based, so when it was done it had to be done efficiently and this required the talents of an experienced and skilled researcher. Today, electronic legal research costs often are measured differently, access to the databases is usually much more widely available in a given firm than was previously the case, and use of electronic research is seen as necessary to complete most research assignments.
I have a couple of responses to this view. While the foregoing points might be valid, the current omnipresence of electronic legal research resources doesn’t translate to omnipresent skill in their use. Just as entering one or a few words into a search box in simple Google web search generally will not efficiently produce in-depth, accurate, and reliable results, having access to the key legal research resources does not mean that one will come up with good solutions to legal problems. Familiarity with the databases, their contents, their search syntax options, general skill and experience in constructing efficient and reliable search queries are all required. A good researcher also must be well-versed in the variety of print tools and textbooks that might be useful in addressing a given problem. It might be fair to say that law librarians, in general, fit this description better than does the average lawyer who does not focus on legal research. On this analysis, it seems the research lawyer can make at least as great a contribution as ever.
Beyond this even, legal research involves much more than searching, whether expertly in an electronic database or even with print tools. A bent for and experience with legal analysis and reasoning are essential. This is really at the heart of legal research beyond the student level. To find, or propose, a solution to a legal problem first requires an understanding or, at least, a basic grounding, of the law in the area. This gives the researcher a basis on which to frame the issues to be addressed and a starting point from which to proceed with the legal analysis. It is true that a lawyer who has significant experience in te particular area of law is well-placed to reach this point. However, this lawyer, unlike a research lawyer, would not necessarily have the hands-on, efficient print and electronic searching skills described earlier, nor the interest in developing them.
Familiarity with case law precedents and legislation – and a desire to keep that knowledge current – are also required if one is to carry out effective legal research. This is also a description that also quite likely would apply to an experienced lawyer practicing or building a practice in a given area. However, a research lawyer may be inclined – or required – to maintain this kind of knowledge and current awareness in many different areas of law – an option not likely available to lawyers, other than generalists or some sole practitioners. And, depending on the nature of the firm in which the research lawyer practices, there may be several different jurisdictions for which he or she must keep current. In some firms, this “generalist” approach may not be preferred for a research lawyer; instead, different departments may have “specialist” research lawyers. If this is the case, then there surely is a requirement that the research lawyer be extremely well-versed in the law in that area as well as maintain the utmost currency in it and areas touching it.
This raises another question: Assuming a research lawyer is still seen as desirable, to what extent can (or should) he or she be able (or be required) to focus on the investment (read: not billable) tasks of (1) keeping current in the law, whether broadly or in a particular area; and (2) sharing this earned knowledge with the rest of the firm? Is this a question for which the answer might have changed over the years, given the burgeoning availability of legal resources and specialization of practices? Should this be a primary role for research lawyers today? A secondary role? The only role? For larger firms, does this depend on how many research lawyers are in the firm? And the more sensitive question is whether, if the role of the research lawyer is not primarily to generate revenue, how does this (or how should it) affect the compensation, position, and recognition of the research lawyer?
My own view is that a weighting in favour of sharing current awareness is preferable, especially for more senior research lawyers, who may be able to offer some personal takes on legal news or draw parallels and connections with previous law and other elements of the law. This, like any suggestion that has a negative short-term impact on the bottom line, obviously will not be popular everywhere. Your views will be received, of course, with great interest.