The SCC and Lawyers Need Better Researchers Than “Clerking” and Law Students

“Clerking” is courts using law students to perform legal research duties. Obsolete, because: (1) it uses the least experienced of legally-trained people as the basis of the most important legal service—legal advice and opinions—and, (2) because it is too cost-inefficient. A webpage of the Supreme Court of Canada states, inter alia: “Law Clerk Program: “Qualifications – Bachelor of Laws or Juris Doctor from a recognized Canadian university or its equivalent.” But that is not adequate for what’s coming.

An equally important reason for creating a much more sophisticated and competent legal research facility for the legal profession, is the need of the courts, particularly the Supreme Court of Canada and the provincial and territorial Courts of Appeal. They have to be supreme experts in the whole of the law within their respective jurisdictions. If it is not so now, it will very soon not be possible for any group of judges using present court practices and resources to maintain that reality. They will either have to split into divisions of specialization, or vastly improve the competence of their legal research and writing support staff and resources. But creating such divisions will raise, among other issues, difficult constitutional issues as to mandatory provincial representation by designated numbers of justices on the Supreme Court of Canada. Therefore its only way of coping with the ever-increasing volumes of law, its complexity, and dependence upon technology, is by using the much more competent legal research resources described below. That transition should begin well before the decrease in the quality of the Court’s judgments is affected, and the length of time to publish them is too long.

As to the potential constitutional issues, see: s. 101 of the Constitution Act, 1867; ss. 41(d) and s. 42(d) of the Constitution Act, 1982; and, the Supreme Court of Canada Act, ss. 6, and 6.1, and the analysis of Professor Emeritus Peter W. Hogg, of Osgoode Hall Law School at York University (Toronto), in, Constitutional Law of Canada 5th Edition (Thomson Canada Limited, 2007) Volume 1, sections 5.5(c), and 8.8, (see also the abridged Student Edition 2015, however on these issues, it does not appear to alter what is stated in Professor Hogg’s main work).

To say in defence of legal research done by student law school graduates, “but we supervise them,” is no longer a sufficient justification. There is now too much law, complexity, methods of accessing and assessing legal materials, and pressure created by shortages of time and workload. Experience is the factor that contributes the most to the quality and creativity of legal research and its strategies. If the supervision of such researchers were sufficiently close and adequate, there would be no cost-saving in using them as researchers.

Such clerking is the use of an obsolete strategy: “cutting costs by cutting competence.” Instead, use the opposite strategy: greater specialization of all factors of production, and scaled-up volumes of production so as to maximize competence, time efficiency, and cost-efficiency by way of greater economies-of-scale.

Needed are career-oriented experienced legal research lawyers, specialized in each area of the practice of law, working in a national legal research unit serving all lawyers and judges in Canada—a national service provided by an upgraded CanLII. That makes possible the highest degree of specialization of all factors of production, which are: (1) research staff; (2) materials used; and (3) databases and principles of database management. Therefore, Ontario’s Law Society of Upper Canada’s Certified Specialist Board program should become a national program and the legal research lawyer should be made a certified career specialty.

A separate judges’ division would gain equal benefits by feeding off the same databases and specialization of all factors of production.

Necessary principles of database management would include: (1) database capture of all finished work-product to maximize its re-use so as to maximize cost-efficiency; (2) indexing all finished legal opinions and memoranda of law for quick and accurate access and review for selection, electronically; and, (3) purging the database of all texts superseded by the creation of new legal opinions and memoranda. Indexing and purging are done by a researcher when completing each legal opinion i.e., at the highest point of knowledge by the person with the greatest knowledge of the material used and its database of related and disposable material.

The materials used would include the creation of standard memoranda for high volume and complex issues such as, the many Canadian Charter of Rights and Freedoms issues, “drunkenness as a defence,” the “proportionality principle” of electronic discovery, and, “best interests of the child.” As the databases developed, such standard memoranda would number in the hundreds in each major area of law and practice—for example, Charter of Rights issues, and “drunkenness as a defence” would each become several memoranda, each one for a different context. Their purpose is to avoid researching such issues again and again for each request for a legal opinion. Groups of them would be assigned to each legal researcher to keep them up-to-date, to the day. Legal opinions would most often be created by accompanying such standard memoranda with memoranda specially written to fit the fact-pattern submitted by each requesting lawyer or judge.

Each legal opinion must be: (1) accurate; (2) comprehensive as to dealing with all issues raised by the fact-pattern and the requirements of the research request; and, (3) very well written so that it can be quickly understood and applied without need to spot-check its accuracy and adequacy. That kind of reliance builds the volume of users and facilitates quick and easy re-use of such finished work-product.

Using criminal law as an example of such specialization: there would be a separate researcher for homicide offences, another for sexual offences, and one for motor vehicle offences, and another for the principles of sentencing. And each researcher would create a database of frequently used passages, paragraphs, and footnotes, for his/her specialty, so that the creation of legal opinions and updating standard memoranda could be facilitated by copy-pasting such frequently needed blocks of writing.

For variety and career development, researchers could, as they might choose, trade specialties every six months to a year. The databases, collections of materials, and their practiced research and writing skills would quickly “bring them up to speed.”

Such refinement of specialization would mean that frequently researchers would be using their own previously created legal opinions to compose new ones. Thus they would become: (1) very knowledgeable of both the in-house, and commercially published legal materials in their specialty; (2) very fast and accurate in indexing finished work-product; and, (3) in purging the database of superseded materials, done by simply deleting the index strings for such materials in the index database; the texts themselves would remain. And every legal opinion would be proofread by another researcher before being sent out to the requesting lawyer or judge.

The results of such a “support services method” of production are: (1) maximizing competence; (2) maximizing cost-saving, number of users of the service, and therefore, profits; (3) the quickest possible response time; and (4) the probability of damaging errors is reduced to a minimum. In comparison, using students (law school graduates) produces the exact opposite results.

And, law students and unspecialized lawyers cannot be expected to develop such database methods and materials, and indexing and purging skills. Also, their term of employment is too short. And no law firm or other research unit could match its degree of specialization, competence, economies-of-scale, and potential revenue.

I developed these methods as part of the technology of centralized legal research at LAO LAW, Legal Aid Ontario’s (LAO’s) centralized legal research unit for Ontario lawyers in private practice who service legal aid cases (a judicare model). By its ninth year of development, 1988, it was producing 5,000 legal opinions per year. There were more than 400 criminal law standard memoranda alone. (Now, 1,000 can be downloaded by legal aid lawyers.) This legal opinion service enabled, for example, the general practitioner and remote-area lawyer to present as high quality a Canadian Charter of Rights and Freedoms argument as might any lawyer, anywhere.

If such technology were used by CanLII, in addition to legal opinions, from its large databases of materials, other revenue-producing products would be developed for each major area of law and practice, such as: (1) a priced catalogue of the standard memoranda, which would be advertised in legal publications; (2) a service that summarizes new decisions, statutory amendments, and significant law journal articles; (3) a newsletter for each major area law and practice; and, (4) specialized databases and projects such as databases of model factums and average sentences and settlements. Special bulk-sale contracts would be entered for providing such materials to government lawyers and legal aid organizations throughout Canada. All such sales would be automated.

CanLII would provide the basic infrastructure for creating such a legal research unit, which would sell its legal opinions and other research products at cost, plus a sufficient profit to finance the following institute.

Closely related would be a national institute for advising law societies how to deal with major problems such as the unaffordable legal services problem which afflicts the majority of the population. Given that many more such problems will occur for which law society management structures are incapable to cope due to obsolescence, it would provide the permanent and developing expertise function that a civil service provides to an elected government.

And the methods of producing all major legal services could be studied by such an institute so as to develop similar support services for those types of work that cannot be made sufficiently cost-efficient. It would design the necessary specialized staff, materials, equipment, and methods of production. Support services such as the need for experts in litigation, and electronic discovery, particularly its “review” stage, and the drafting of various specialized texts, could be made available at cost. Because of the much higher degree of specialization and scaled-up volumes of production possible, such costs would be significantly lower than those of any law firm.

Another of its functions would be facilitating the automation of all routine legal services. It would create a single bargaining agent to negotiate with the software program producers on behalf of all lawyers in private practice in Canada for the necessary programs. Financing such contracts would be obtained by a series of modest increases in annual law society fees. A single bargaining agent would maximize the bargaining strength for all lawyers. Such contracts would include on-going maintenance and advisory functions.

If necessary, further funding for such an institute could be obtained by arrangements with the many university and institutional research and policy development organizations that study the justice system and access to justice problems; for example, the recently announced, Access to Justice Centre for Excellence at the University of Victoria’s Faculty of Law.

In contrast to such innovations, the many current Access to Justice committees and programs have three faults that prevent success: (1) they are composed entirely of lawyers; but unaffordable legal services is not a legal problem–lawyers don’t have the necessary expertise; (2) they assume that the solution is to bring the right improvements to the existing method of providing legal services, when in fact the cause of the problem is the method itself–it is obsolete; and, (3) their reports end with recommendations that are never submitted to trial-and-error learning. The solution requires the legal profession to change from its “handcraftsman’s-cottage industry” type of production, to a support services method of production. That is the type of service recommended herein for legal research services. And it is the support services method that all of large-scale competitive manufacturing and the medical profession use.

Compare: no doctor’s office provides all treatments and remedies for all patients the way a law firm does for all clients. The skills of surgeons have been under development for many centuries, and now there are several highly specialized types of surgeon. The innovation never stops. In the legal profession, it barely started, but remains stalled. Legal work is done the same way it has always been done. But it is much better done by specialists who are available to advise all general practitioners. But law society certified specialist programs would have to be proactive and not merely reactive, i.e., the difference between responding to society’s needs instead of serving lawyers’ interests in being designated specialists. A national institute of experts could provide the supportive research for determining what types of specialized lawyers and national support services are needed.

As a result, the A2J problem of unaffordable legal services is inevitable because law firms do not have the necessary high degree of specialization and volume of production that produce the economies-of-scale necessary to maintain legal services as affordable. Because of a lack of innovation in the method of producing legal services, lawyers have priced themselves beyond the majority of the population and therefore beyond the majority of its taxpayers—taxpayers who cannot afford lawyers but who pay for the justice system whereat lawyers earn a better living than they do, and self-represented litigants (SRLs) most often fail and cause judges to warn that the increasing percentages of SRLs are bringing their courts to a halt.

And clerking and law students doing the bulk of a law firm’s legal research is the result of a very obsolete strategy: “cutting costs by cutting competence.” A very opposite strategy should be used, which incorporates this engineering principle: “nothing is as effective at cutting costs as scaling-up.” The support services method of production makes much higher degrees of competence compatible with much higher degrees of cost-efficiency and volumes of producing legal services than any law firm is capable of.

There is however, an intermediate option. Instead of using law clerks, the Supreme Court of California, (that state’s highest court), uses permanent staff attorneys, some of whom are attached to particular justices; the rest are shared as a central staff. The resulting reduced turnover of staff attorneys, instead of new law clerks each year, has improved the efficiency of the Court in dealing with complex cases, particularly death penalty cases. Currently, applications are being accepted for a Supreme Court Chambers Attorney to serve on the personal staff of the Chief Justice. Applications will be accepted until February 8, 2016, or until the position is filled. See: Job description – California Chambers Attorney, Personal Staff of the Chief Justice (click on Job ID 4137, which, at the time of writing this article, was the 2^nd listing from the bottom of the list, OR, click on, “view all,” and then click on “4137” ).

We accept the support service that is legal textbooks because of our law school training—training that would become more sophisticated as support services become more sophisticated, and necessary. Such textbooks are a support service that is much less quality-controlled and effective than that which I have described above.

For further details see (pdf downloads): (1) “Access to Justice – Unaffordable Legal Services’ Concepts and Solutions”; (2) “The Technology of Centralized Legal Research Can Solve the Unaffordable Legal Services Problem”; (3) “Access to Justice – Canada’s Unaffordable Legal Services – CanLII as the Necessary Support Service”; (4) “A2J: Preventing the Abolition of Law Societies by Curing the Defects in their Management Structure: A Solution to the Unaffordable Legal Services Problem”; (5) “A2J: ‘Let Them Eat Cake,’ So Let Them Use Alternative Legal Services”; (6) Indexing; (7) Sometimes Laws are Too Important to be Left to Lawyers—Lawyers Without Technical Support,” (Slaw January 28, 2016), and other access to justice (A2J) articles on my SSRN author’s page, and Slaw author’s page.