4Students – Legal Research Beyond Google
Canadian Lawyer has a magazine for students called, appropriately enough, 4Students. In the March 2007 issue, Derek Hill has authored an article called Beyond the online: there’s more to legal research than sitting at a computer.
As someone quoted throughout the article, I come off as sounding quite critical. I am a lot more diplomatic in real life! Some of my colleagues contribute quotes as well to mitigate my pessimism (or take help take the heat, depending on how you look at it): Beatrice Tice, chief law librarian at Bora Laskin Law Library, University of Toronto, Shaunna Mireau, librarian at Field Law in Edmonton, and Neil Campbell, law librarian and associate professor of law at the University of Victoria. Also quoted are Rosemary Bocska, an independent research lawyer, and J.A. Prestage, head of the legal research group at Blake Cassels & Graydon LLP.
From the article:
In the plus column, the days when the firms were concerned about the articling student fumbling amateurishly on Quicklaw and eCARSWELL, wasting valuable time and racking up exorbitant charges on their clients’ behalf, are long gone. Students are considerably more technologically savvy, and with free access to the systems in law school, most are capable electronic researchers before they graduate.
However, in the minus column, current articling students’ legal research skills are often lacking in three ways: (1) failing to have a tactical research strategy; (2) being unfamiliar with the traditional resources; and (3) being incapable of performing adequate statutory research.
I particularly like the discussion in the article as to how research differs between law school and once the student is out in the field.
What do others think about the article? I would love in particular to hear from students and first year associates, whether they see this assessment as accurate.
Connie, I thought it was an excellent article. The commentary was very consistent with what I’ve heard from other Librarians and research lawyers.
One part I wasn’t sure about, where it states, “the days when the firms were concerned about the articling student fumbling amateurishly on Quicklaw and eCARSWELL, wasting valuable time and racking up exorbitant charges on their clients’ behalf, are long gone.”
Others experience may vary, but we still see students going outside subscription areas and racking up huge bills that the firm must write down/off.
I also think flat fee billing structures hide the sins of some students. Students who spend excessive time doing online research drive up usage rates. When usage rates spike we can sometimes turn a blind eye, but when contract renewals come around Vendors aren’t nearly as kind. Law firms always pay for their usage. It may be 1-3 years later at contract renewal time, but we pay. … short story, I think online research efficiency and offline preparation are still important issues/skills.
I agree about flat fees hiding the searching sins. We do warn students when they arrive here that, even if we have a so-called flat fee, search costs usually affect the subscription renewal rate and they can’t just run amok. We try to emphasize cost-efficient searching.
You want to control online search costs? Tell your students and younger associates that they can’t use the subscription databases until AFTER they’ve read the relevant summary in (1) the leading texts (2) asked – where that facility exists – somebody who should know if the same question was reaserched within recent memory and where the memo is; (3) consulted a leading treatise such as the CEDs even if only for the case law; (4) asked somebody one or two years ahead of them if they know the most recent case(s), (5) searched CanLII, the other LIIs etc, (6) for litigators, looked at the subject matter indicies for the Advocates’ Quarterly and the Supreme Court of Canada law review and (7) signed a written declaration that they did (1) through (6), as required, properly.
Yes, I realize an exception has to be made for those who now only have the CEDs online and need to consult the indicies to the AQ and the SCLR which aren’t (I believe) available easily on line in a collected form. If I’m wrong in the last, please let me know.
David
Hi, I’m a 1st year law student at UBC. First of all, I don’t think you seemed critical in the argument: you were simply identifying weak areas and offering strategies for students to strengthen them. I thought it was very helpful! I especially noted the importance of planning a research strategy (and how it will differ from a law school research strategy) and being answer-oriented.
I do think we’re getting more exposure to statutes than the article suggested (maybe that’s a result of the new curriculum at UBC?). For example, we take a course on statutory interpretation (I’m working on a paper interpreting a section of the Fisheries Act right now). That being said, it’s the first “open” research assignment we’ve been given.
I completely agree that law students are unfamiliar with secondary sources. Aside from textbook excerpts, the only journal articles I’ve seen all year are the ones whose footnotes I’ve checked for the Law Review.
Then again… didn’t Slaw publish a post recently that suggested higher courts are increasingly ignoring journal articles…?
David: thank you for outlining things to look at before jumping online. Definitely some ideas here I hadn’t thought about since we are not formally doing KM, but certainly possible even without.
Krista: Very interesting comments! I am delighted to hear you are getting a chance to try your hand at statutory interpretation. It will be very important in your practice later on.
Even if journal articles aren’t themselves admissable in court, they are still an important starting point for finding the primary sources.
Connie: You didn’t need knowledge management so long as you had Paul Perrell around.
A good article, Connie. I based a lot of my thinking about this issue, and the way I construct my courses, around that old chestnut of an article by Morris Cohen, “Research Habits of Lawyers” 9 Jurimetrics Journal 183 (1968-1969). I haven’t yet found anything quite as good as describing why legal research in the common law seems so be so difficult, but I’m willing to take suggestions for further reading.
Of late, I’ve been thinking that the issue is not really about research, but about understanding the sources and nature of law. As Krista rightly points out, the more you know about legislation, the better you are able to research. Many law schools address this by offering specific legislation courses or parts of courses, as is done at UBC and UVic, but much of the fundamentals of caselaw research is only covered as a feature of the case method in the classroom. There are really some deeper issues that inform case based research, that really don’t get well addressed to law students, such as the real interplay between precedent, jurisdiction and logic. I could go on, so I’ll just record my thoughts, and offer to spout off more on this topic to anyone who has an hour to spare and wants to join me, or even better, buy me a beer!
Neil,
>> Of late, I’ve been thinking that the issue is not really about research, but about understanding the sources and nature of law. … There are really some deeper issues that inform case based research, that really don’t get well addressed to law students, such as the real interplay between precedent, jurisdiction and logic.
I’ll spout a bit. I agree whole-heartedly with the first quotation, but I’m not sure about the second.
Casuistry is casuistry is casuistry. Logic is logic is logic. (Shakespeare and Stein took the better restatements. Such is life.)
Limiting rules are limiting rules, whether described as part of law’s rules of precedent, or some other ism’s rules of validity.
If a law student who has managed to graduate from university has problems grasping that, she, he or it shouldn’t have been admitted to law school. We’ll leave to somebody else the question of how the entity managed to graduate from university.
In truth, anybody who has trouble grasping that basic proposition probably should not be permitted to hold any sort of sharp object, lest s/h/it injure itself, or others.
Maybe if everybody stopped suggesting there is anything particularly unique about legal research, that there is something unique about legal logic – well, other than the fact that it’s so often illogical when it’s not intellectually dishonest – we’d have less students having difficulty. We tell them it’s difficult. Why shouldn’t they believe us. After all, have we ever lied to them?
Or, let’s be honest and say legal logic and analysis functions the same ways as logic does in religion. Heck: law is religion by another name, in substance and process. We have our first principles which just are. We can argue “why” they are but, at the end of the day, they just are. We say they’ve been chosen because they’re better. Religion says it chose its first principles by faith. Is there really a difference?
Just as in religion, valid logic breaks down so we deem the result to follow from the premise, even though we know we can’t prove it follows by any empirical system. We call that legal fiction. Writers call that fiction, science fiction, or fantasy. Religion calls it faith. Everybody is right.
Has anybody tried telling their students that the subject isn’t difficult? Just tedious? That it really is as simple as falling off a log; as putting square pegs in square holes? Maybe we’d not have the problems we have if we hadn’t created generations who believe they’ve entered on the first stage of a Masonic-mystery controlled by secret Illuminati.
Let’s be honest that that much of our common law precedent is logically consistent only within a narrow definition of what’s logical, which gets narrower each time a distinction without a difference is created to justify the result the judge thinks is the better result.
Tell the students to understand that the system claims adherence to general principle; but its practitioners seek ways to subvert it and avoid its application if general princple doesn’t produce the answer that’s “right’ for their client. Or, the judge believes that general principle doesn’t produce what the judge believes is the appropriate answer.
Tell them that they need to understand the general principles just so that they know what facts could be relevant and what they can discard. (Don’t tell them that they’ll have to know the cases to know that and they can’t know the general principles without knowing the cases, lest somebody ask about chickens and eggs.)
Yes, I know this doesn’t help those of you who teach, so I’ll shut up. [Rant off]
David
Hmm. I join this discussion against my own better judgment. It is, after all, turning into the one-billionth discussion of what is wrong with legal education and law students + “everything I know I learned outside law school.” That this is an eternal issue is curious, and must have causes that I’m not about to explore in a comment, except to affirm from experience that whatever else law profs are, they are in nowise fools.
What would help, I think, is some detailed and structured course proposals or, at least, parts thereof, down to the level of lesson plans, with goals, methods and means of testing achievements made clear. Otherwise, criticism tends to be of the sweeping kind, with generalities that have no likelihood of making contact with real, ongoing teaching and learning — that is, of the “I’ll-tell-you-what’s-wrong-with-the-youth-of-today” sort. Slaw, when taken as a combination of its writers and readers, has the resources to produce some pretty valuable tools for students to learn legal research, I’d say. We might consider directing our minds toward such things.
On an only somewhat unrelated note (who else but a legally trained person could produce such a nearly double negative?), I read with amusement a little piece called “Getting A’s” in today’s Globe and Mail in Michael Kesterton’s Social Studies column. The money quote by one Alfie Kohn, author of Punished by Rewards is “The more you reward people for doing something, the more they tend to lose interest in what they are doing to get the reward… Paying kids for grades is a reward for a reward — it doubles the damage. You can almost watch children’s interest in learning evaporate before your eyes.” Now picture a classroom full of proto-lawyers who believe, rightly I guess, that good grades will get them the plum job both to pay off their student loans and acquire them that BMW they’ve been admiring. Welcome to professional education.
Simon:
Don’t we have to identify (with some level of reasonable certainty) what the cause(s) of the perceived problem are before producing tools? Or, are the problems, now, because of the mass of available information, on such a wide spectrum that any tool we produce is necessary? I’d hope it’s not become that bad.
Putting that aside. I’m supposed to be writing a book review. It’s a comparative law study, most of it involves common law subjects, but it’s written by an author who is, first and foremost, a civilian lawyer. Some of you will be familiar with the jibe comparing the civil and common law systems: one functions by reason of authority, the other by authority of reason. I’ll leave it open which was which, in the original jibe.
I’ve mentioned what I’m trying to do, now, because it’s relevant to this discussion. There were times, as I read thought the text, that I thought: “that isn’t the way a common law” trained lawyer would analyze the subject. Could a common law lawyer even think of the problem that way? Have I missed something?” (I’ve good reason – outside context – to believe I haven’t. If I have, I’ll be told (off) in due course.)
As a practitioner, I broach the question to the civilian lawyers and professors amongst us. Is the plaint you’ve heard from the common law side a problem on your side? If it’s not, does that tell the common law side something significant? If it is, what are the common elements of the problem? Won’t identifying those elements help in design better tools for (legal) research, because those problems are either inherently part of whatever makes law, law, or not intrinsic to law but to people learning a legal system.
On the same subject – how lawyers think – in a way, over at the Concurring Opinons blog:
http://www.concurringopinions.com/archives/2007/04/memory_the_repo.html.
Here’s the first bit: “I’ve been reading early nineteenth-century English contracts cases of late. One of the fascinating aspects of these cases is the way in which they deal with previously reported decisions. Everyone is familiar with the way in which judges narrow and distinguish earlier holdings. This, after all, is bread-and-butter lawyer stuff. Still, when we play this game we assume that the previous case refers to some stable and discoverable text, a judicial opinion. We can expand and contract the reasoning and pick at the facts, but the text remains the same.
Not so for the judges that I have been reading. Unlike their modern counterparts, their nineteenth-century lordships (or at least their early nineteenth-century lordships) did not seem to think that they were bound by the text of the earlier decision.”
Our contracts maestro, John Swan, might have a take on this.
Recently posted on SSRN
Koo, New Skills, New Learning: Legal Education and the Promise of New Technology
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=976646
The abstract is:
——————————
A large majority of lawyers perceive critical gaps between what they are taught in law schools and the skills they need in the workplace, and appropriate technologies are not being used to help close this gap. This was the core conclusion of a new study by the Berkman Center for Internet & Society at Harvard Law School, in partnership with LexisNexis, which found:
• More than 75 percent of lawyers surveyed said they lacked critical practice skills after completing their law school education.
• Today’s workplace demands skills that the traditional law school curriculum does not cover.
◦ Many attorneys work in complex teams distributed across multiple offices: nearly 80 percent of lawyers surveyed belong to one or more work teams, with 19 percent participating in more than five teams. Yet only 12 percent of law students report working in groups on class projects.
◦ Smaller firms can stay competitive with larger firms through more nimble deployment of technology tools and by exploiting the exploding amount of data openly available on the Web. Attorneys at these firms need tech-related skills to realize these opportunities.
• Legal educators seriously under-utilize new technologies, even in those settings, such as clinical legal education, that are the most practice-oriented.
Research also suggests a breakdown in post-school workplace training, with smaller firms particularly unable to afford formal professional development.
• Neither law schools nor most workplaces provide new attorneys with a structured transition between school and practice. Only 36 percent of lawyers surveyed report a dedicated training experience during their first year of employment.
• Clients are increasingly unwilling to pay for training of associates, e.g. prohibiting firms from billing for young attorneys’ attendance at client-facing meetings. New lawyers’ involvement in such meetings has long been an important apprenticeship activity.
Finally, advances in computing and networking offer potential solutions to shortcomings in skills training at law schools.
• Utilizing authentic practice technologies to support law school clinical programs exposes law students to the practical tools they need to succeed in future practice.
• Learning through computer simulation mirrors the technology-based foundation of most legal practice settings today and enables participants to experience non-linear decision making closest to real-world casework.
————————————
The paper has had 279 downloads in about two-weeks.
In response to David’s comment (#11 above) I can say that many early and later nineteenth century cases are characterized by a deliberate re-construction of ear-lier law. There seem to have been at least two motivating factors: (i) the desire to base law on what was perceived as a more secure conceptual foundation and (ii) the greedy assimilation into the topic of “contracts” of areas that had, up to then, been separate, e.g., sales, bailment, carriage, insurance, etc. The developments were not neat—they present a ragged appearance in the sense that it is often only with hindsight that we can see that there was a development. One example is the movement away from Lord Mansfield’s approach of considering such things as moral obligations to consideration—the bargain principle—as the sole basis for the enforcement of a promise. Whether these developments were seen as necessary to reflect the view of law as a positivist development, strictly separated from moral considerations or as required by the commercial practices of the nine-teenth century, is an issue that I need not now explore. To a quite extraordinary extent, cases were, by a procrustean process of hacking and shoving, forced to “stand for” propositions that the earlier judges might have found startling. There are many examples in my text that I shall not expand on here.
In one sense Lord Halsbury was correct—law is not a logical development—in another, he was wrong: it was just that the premise of the earlier case was (retro-actively) changed and the “new” or newly perceived logic developed in the lat-ter. The best examples are provided by the developments within what I call “go-ing transaction adjustments”, i.e., cases where the parties agree that the terms of the original contract are to be changed in the midst of performance, and cases on the third party beneficiary rule where no consistent attempt was made to fit the cases together in spite of the fact that there was, supposedly, a very clear rule.
Simon
By the way, the “active learning” tool you’re envisaging might be some version of a virtual world where (like the Life? game) law students can set up matricies of laws and run simulations to see what happens. Make the world co-operative and we’re reaching what you want.
It’s StarTrek:TNG’s holodeck in microcosm, right?
Consider it law’s version of science’s fruit fly.
There are some papers on the web, I think, speculating along those lines.