Strategic Thinking in Legal Research
Law students or young lawyers sometimes struggle when they are faced with a complex research problem. Where do they start?
At the root of this is the need to think strategically about the problem to identify what sort of problem it is and how to best break it down into manageable pieces.
In retrospect, I realize that I in fact don’t necessarily address this challenge head on in my book, aside from citing some of the suggestions on how to analyze the facts and the law made by Maureen Fitzgerald in her Legal Problem Solving – Reasoning, Research & Writing (now in a 2010 5th ed from LexisNexis Canada). I highly recommend her book for this purpose since she has some useful exercises that can be helpful for students to work through. I also recommend McCallum et al’s Synthesis: Legal Reading, Reasoning and Writing in Canada, 2d (Toronto: CCH Canadian, 2008) since applying the law to the facts – synthesis – is also part of the challenge and this book provides useful commentary on this aspect. More broadly, prior to being a lawyer, I used to be an avid reader of Edward de Bono’s work on thinking, including vertical, horizontal and parallel thinking, along with his “Six Hats” approach to thinking, and would like to re-read his work with an eye to seeing how applicable it would be to thinking strategically about legal problems.
In the meantime, set out below is the advice I usually give to law students or young lawyers on how to think strategically when conducting legal research.
1) Law school ≠ real life
One reason law students or young lawyers are uncertain how to strategically think about legal research is that law schools typically present artificially simplified problems that are never as complex as real-life problems.
A typical law school course focuses on only a single area of law (e.g., contract law). As such, research assignments or exam questions will tend to focus only on that topic and will often be based on a limited scope of cases previously studied in the course. The reality, however, is that real life problems tend to be messy and complex and may involve multiple areas of law with lots of issues and complicating factors with there being no obvious, defining body of cases or commentary limited to the particular problem. Instead of getting a “contract law” problem in law school limited to the contract cases discussed in the course, imagine a real-life scenario where the client, in a rental car in a foreign country, gets involved in a car accident with a diplomat from a third country where the client was drinking and his infant daughter was injured in the accident. What areas of law might be relevant? (Among other areas: conflict of laws, tort / negligence law, contract law, insurance law, crown law / foreign government immunity, the law of infants, and so on). In this example, although the parties involved and the issues are not that complicated, it is typical of real life legal problems that span more than the limited topic of a single law school course.
2) Embrace the challenge
Rather than stress over difficult research assignments, embrace the challenge and seek out as many research assignments as possible. Many if not most articling students or young lawyers are extremely bright but may lack confidence due to lack of experience. Struggling with complex research problems is a good way of flexing your analytical skills to engage in challenging work, which by default will lead to more experience and more confidence. Most senior lawyers do not assign easy problems (if the problem were easy, they likely wouldn’t need you to research it). Likewise, when clients ask their law firms for help, it is usually because the situation is novel and complex and requires new ways of thinking to achieve a good solution. And in many situations – believe it or not – the student or junior lawyer may have better research skills than the senior lawyer and bring a perspective to the problem different than the assigning lawyer.
3) Research anxiety is normal
It can sometimes reduce stress by realizing that “research anxiety” is a known phenomenon that is experienced across a wide range of researchers. You are not alone. I have earlier blogged here on SLAW on reducing anxiety in the legal research process and on the research of Professor Carol Kuhlthau and recommend her writing on this topic. There are many stages to the research process and confidence levels will ebb and flow, depending on what stage you are at. From the law librarian’s perspective, we neecd to identify those stages when the researcher is experiencing a high level of uncertainty to help them through the process.
4) It gets easier with experience
If a particular problem seems insoluble or overly complex, realize that things get easier with experience. While that advice does not necessarily help you solve a particular problem if you don’t have a lot of experience, it might help to know that you will get better at legal research the more you do it. Most second or third year associates looking back at their articling experience will be surprised by how much they learned and that the unsolvable problems they faced as articling students would no longer be as much as a challenge (if at all).
5) Put yourself in the client’s shoes
Since we are trained as lawyers we tend to think that all problems are legal problems. However, most clients don’t necessarily see it as a legal problem but instead see it as a business problem. Like the example used by Susskind: Black & Decker sales reps, when shown one of their drills and asked if this is what they sold, were incorrect in answering “yes” when in fact what they were selling was the solution of what their customers wanted – a hole in the wall (or board). For many research problems, it may then help to step back and think like the client – what solution does the client want to solve their business problem? How can you help come up with that solution? The client is paying for advice leading to a solution. Producing a research memo for the sake of summarizing the law does no good to the client if it otherwise does not lead to an informed decision that results in likely outcomes or recommended solutions for the client’s situation.
6) Brainstorming and Mapping
“A conversation with a wise person is worth a month’s study of books.” Remember this proverb. There is truth in what it says. For complex problems, it often helps to talk through the problem with other people. They may see things you don’t see. Alternatively, they may have already dealt with the same problem. Who to ask? Law librarians can be a good start. In addition, speak to your fellow students or junior lawyers. And never forget to go back to the assigning lawyer if you are confused, uncertain or just plain stumped. Talking it through can often generate new ideas.
If a problem seems overly complex, break it down into manageable bits. One good suggestion can be to brainstorm on paper by writing down all of the ideas that pop into your mind and then organize those ideas to look for patterns.
If the complexity of your situation relates to complicated relationships (between corporate entities, for example) or important timelines, I sometimes find it helpful to “map out” the problem and visualize the relationships or order important events in chronological or parallel order (and keep these maps or timelines – the can often effectively be included in your memo to visually explain what might take a full page of text to explain).
7) Details Matter
If your research problem involves contracts or other documentation, review those documents for details such as choice of law clauses, attornment clauses, and other boilerplate clauses (such as “no amendments” and “entire agreement” language). If the interpretation of a contract is in issue, I highly recommend Hall’s Canadian Contractual Interpretation Law (Toronto: LexisNexis Canada, 2007).
Likewise, if your problem involves tortious conduct or products liability, see if there are pictures or police reports that might provide relevant information or more detailed information about the product. Alternatively, if there are medical, economic or other aspects to your “legal” problem, Google the relevant keywords to gain a better oversight of these aspects or the client’s business and the issues they face and the products they produce.
Although in many situations the struggle can be having too much information and complex details, there can sometimes be a problem of not having all of the correct information. Make sure you get the information that you need from the instructing lawyer.
8) Grappling with the facts
In many situations, the devil is in the details. Grapple with the facts. Often asking yourself the 5 W’s (who, what, where, when, and why?) and the 1 H (how?) can be a useful way to better understand the relationship between the parties and help identify what may become legally relevant facts or issues, such as jurisdictional questions (from the “where?” question) or limitation period questions (from the “when?” question).
Fitzgerald’s book has some great examples and exercise to work through sample fact analysis (she suggests, for example, to consider identifying the parties, events (what happened?), and what they are seeking (i.e., the claims).
Once you have a better sense of the facts, it is then necessary to consider what the legally relevant facts are. For example, the age of a party is generally not relevant unless they are a minor (and hence under certain legal disabilities) or, for example, an older worker who has been laid off and may find it harder to find new employment.
9) Identifying the issues, determining which legal topics should be explored
To help frame and focus your research, after you have identified and worked with the general and legally relevant facts, it is usually time to identify the issues. Fitzgerald reminds us that there can be both factual and legal issues. If there are factual issues, is more information required? Alternatively, if the outcome depends on certain facts being provable in court, what are the risks of that evidence being rejected by the judge?
After having grappled with the facts and issues, you are usually in a position to start thinking about what legal topics are involved and what resources you should first consult.
Here you should consider the standard approach. First start by checking:
- Books
- Journal articles
- Legal Encyclopedias (CED, Halsbury’s Laws of Canada, JurisClasseur)
- Reference tools
- Internet searches
- Firm memos
- Case digests (by topic)
If you are checking these resources on a specific legal topic (e.g., contracts law) but are not finding relevant information, it may be that you have picked the wrong area of law and need to try a different legal subject matter.
Of course, after consulting the secondary resources, you ordinarily must consult the relevant primary resources (legislation and jurisprudence) to verify what the law actual is.
Legal research checklists are a great tool to remind yourself to consult the relevant resources.
10) Be decisive in your conclusions
Law students or young lawyers sometimes struggle with making a conclusion. This can sometimes be due to a lack of self-confidence or experience. Other times, it can sometimes be due to the law being particularly confusing. However, even if the law is uncertain, you can be certain in your conclusion (i.e., you can be certain that the law is uncertain). Our firm has developed sample “conclusory” language, ranging from being highly confident in your opinion at the one extreme to being highly uncertain as to the likely outcome at the other extreme, with varying degrees of language in between. This language can often be useful to a new researcher to provide better ways of explaining your level of confidence in a particular outcome. The “because” if often important here (e..g., I am of the opinion that . . . because . . .”).
Ted, this is excellent advice. Now to find a way to ensure that every law student reads this!
As a lawyer who does a LOT a research interpreting contracts, my top three tips are:
1/ Ask the person giving you the assignment how much time they want to be spent on an assignment. If it is greater than 4 hours, ask if they want an update part way through to discuss if you’re on the right track with the research.
2/ Ask whether they want a verbal report before a written memo is drafted.
4/ Repeat the assignment back to the assignor to make sure you understood what they want and tell them the scope of research you expect to do. i.e. all provinces plus US law or just Ontario law? only recent cases or any case that fits certain criteria?
Here’s one law student that’s read your advice.
Thanks Ted (and Grace). A dynamite set of advice for anyone looking to master legal research.
Ivan,
Now I’ll offer you what might be a different perspective.
((Pace Ted, and others: we’ll just have to agree to disagree, if in fact we disagree in principle.)
If you can go to the bathroom by yourself, once you are shown where it is, you are competent to do legal research.
If you can manage to miss the floor and not hurt yourself zipping up your fly (or doing up your buttons etc.) you’re competent to do it well.
(If you’ve grasped the analogy, you’re already well on the way to getting the point.)
Beyond that? It’s practice. And patience.
Beyond that, it’s nothing more than turning over rocks to see what’s under them. One rock leads to another.
Some people learn faster than others, that’s all. Or, if you wish, for whatever reason, they’re better and seeing where the optimal places are to look for the fifth rock(s), while they’re still at the 2d. For some it’s somewhat natural. For others its learned. In either case, it’s not rocket science.
It was mind-numbingly boring, once, and tedious, where each rock required you to go get another book from anther shelf an page through that book until you found the right page. In many ways, it still is.
Computer searching has eliminated much of that tedium. But the process hasn’t changed.
David
Thanks everyone for your comments so far.
David – I don’t think we disagree. In fact, I had intended (but forgot) to mention in my post the notion that some people are better suited to legal research than others and that a healthy dose of curiousity helps. Like many who enjoy legal research, the one aspect I like is the “hunt” to answer a difficult question (along the same lines that I enjoy doing crossword puzzles, logic problems and the like). BTW: I am stuck on 1 Across in today’s NYT Crossword Puzzle. The clue of “Traditional March birthstone” would normally be “bloodstone” or “aquamarine” but there are only 6 letters, likely ending in “er” possibly starting with en “e” (I have most of the rest of the puzzle but am stuck on the upper left quadrant) (and yes, I am aware of Rex Parker’s brilliant blog in which he posts and comments on answers; I try to avoid looking at the answers until I am finished on my own or unless I am really stuck).
However, for grumpy old men like you and me, I sense – in general terms – that the millenial generation – who have a hard time imagining a word without the Internet and Google – approach research differently than older people and may have less tolerance or patience to sift through (print) materials, which is sometimes necessary. Now, I may be wrong in this impression, or I may be over-generalizing, but this is one reason I think it is sometimes necessary to expound on strategic thinking.
Great advice and morale booster! Thanks for the support through legal studies..first year..
Point 8 is an interesting one – ‘grappling with the facts’. As they say, facts are messy things. Students starting research for the first time in the ‘real world’ are often coming at it from a law school perspective, where the facts are fixed or treated as proven. Take your real life scenario, the drunk diplomat in a rental car, and layer onto that the issues of proof and evidence that come up at the trial level, and many students are baffled.
Second, one thing I see students struggle with is where to stop. Many assume that there’s an answer for everything, there’s a case out there if they just look hard enough. The reality is that we have great tracts of statutes that have never been litigated and sometimes the answer is “there are no cases that have considered this point”. I have had students that assumed I was testing them by sending them out to research an obscure point, that I had the case already and was testing their quicklaw or google skills. In fact, sometimes there is no answer.
I was interested to read Ted’s comments and found them helpful. My work as a professional writer involves devising methods for working with law. One such method is directed to answering problem questions based on hypothetical facts. The aim is to displace the now commonly used IRAC method which is under developed because it omits key steps (and thus fails to provide the training in some litigation skills that problems questions should provide).
Another research project is to develop a methodology for legal research. The idea is to create an information smart mindset for lawyer. There are two levels. At one level it is a generic or abstract model that covers all common law jurisdictions. At the second level it adapts the generic model to the circumstance or details of specific jurisdictions such as Canada, the US, the UK, New Zealand etc
Details will eventually come onto my website when work starts early in 2012. see http://www.legalskills.com.au
Thanks again for the additional comments everyone.
I had also meant to include in the post mention of the problem of knowing went to stop a research assignment (especially where the student or young lawyer is not finding much). When they are not finding stuff, they would ideally have access to a law librarian or knowledgable lawyer who can check if the researcher has considered appropriate resources or suggest alternative approaches, such as checking in other jurisdictions or looking for parallel or similar legal topics where the issue might arise. There is, of course, always the possibility of simply going to “first principles” in the absence of anything directly on point.
For Christopher – thanks for your comment and good luck with the various books. Looks interesting.
First principles are always directly on point (g). The something else sometimes means that sometimes one doesn’t have to go back to first princples or even the primeval slime.
OTOH, it’s always “fun” to catch judges who ought to know better writing reasons which rely on that something else, and giving no indication of whether the judge looked under the rock, or went back to first principles, because you know that if they did they wouldn’t have said what they said they way the said it, even if they (somehow ended up at the same place.)
That happens more often than many people realize. Not just at the motion and trial level, either.
David