Teaching legal research to today's law students and young lawyers presents a challenge. The current generation is so online-oriented that they have learned to rely on powerful search engines to provide answers to complex questions. The seductive and easy lure of using the Internet for legal research means one never has to leave one's desk, step into a library, or open a book. The problem is that too often online research yields superficial results. Also, the vast amount of online information makes navigating to the intended destination a voyage into the unknown.
Experienced researchers and teachers believe that the reliance on electronic resources to the exclusion of print may end up being less efficient. They espouse the idea that sometimes the best way to start research is to consult a treatise for a general understanding of the legal issues involved. A treatise written by an expert or a legal encyclopedia provides explanation, leading cases and authoritative analysis. After background reading is the time to go online.
Craig Smith, assistant dean for Legal Writing and Academic Excellence at the University of North Carolina School of Law, teaches first-year law students. He finds that one of the problems for students is the excess of information accessible online today. It's like having to look at the universe through the Hubble telescope. His solution is to show students the economy of a book with a table of contents, index, and annotations. He walks his students into the library and has them hold a casebook, an unfamiliar experience to many. Then he shows them how they can find most of the sources they would need to do research on North Carolina law on just two shelves. On the other hand, when students see text on a screen, they don't distinguish differences; all the text looks alike. In a book or periodical, the pages and formatting make it easier to differentiate among cases, annotations, law reviews, and commentary. In addition, the challenge of identifying reliable sources online is exacerbated by legal databases framing every screen of text with their brand, suggesting all is authoritative, whether from a blog or a primary source.1
Many law schools offer courses in advanced legal research, although not all require them. Those that do, like Yeshiva University's Cardozo School of Law, aim to turn out graduates who are savvy in doing research and thus more effective lawyers in their chosen fields. Lynn Wishart, associate dean at Cardozo, strives to meet the challenge of training the school's students. She believes that the problem often precedes a student's arrival at law school. Students may have lacked a good high school civics course in which they learned how a law is enacted or the difference between statutes, codes and regulations. Without a basic understanding of our legal system and which branches of government promulgate which laws and regulations, students do not know where to look. Another factor at law schools is that the schools themselves pay for Westlaw, Lexis, and Bloomberg Law for their students, and the students don't see the costs of their searches.2 The incentive to be cost-effective doesn't impact them until they enter law firms where search costs are either charged as an overhead expense or passed along to clients. Clients will not, and should not, pay for their inefficiencies.
To compensate for these challenges, developers of the most popular search engines and legal databases have been successful in building systems that do some of the thinking for law students and young lawyers. They can surface information that the user may not otherwise have sought out.3 Thomson Reuters' Westlaw was the first to provide a more Google-like search interface. WestSearch®, the basis for WestlawNext®, was launched in 2010, followed the same year by the LexisNexis counterpart, Lexis Advance®. In a July 2012 article in Practice Innovations, Mike Dahn, senior vice president in New Product Development at Thomson Reuters, wrote about the "Impact of New Legal Research Platforms on Attorney Research." Mike cited the significant advancements in modern legal research technology that have improved "the research experience by making the interface easier to use, more like navigating the Web." WestSearch "automatically recognizes the user's search format and does a global search across a comprehensive and authoritative collection of legal content."4 The content includes cases, statutes, regulations, treatise material, and articles, so the user doesn't have to select a database or run multiple searches in different databases. Brian Quinn, currently senior director of New Product Development at Thomson Reuters, follows the premise that "the current generation of students and recent graduates is used to finding the right path quickly, starting from a simple search." To accommodate this expectation when retrieving cases and dockets, WestlawNext has a type ahead/autosuggest feature. All the user has to do is type one or two words of the case name without the exact citation, and the case or docket most likely comes up. The user could even have the wrong court and still find the case.5
Thomson Reuters, Reed Elsevier, and Bloomberg BNA are examples of companies that have made acquisitions to increase content in a bid for exclusive use by attendees and attorneys in law schools, courts and firms. Legal information providers aim to win over students in law school so they will be committed for life. In addition, the vendors are integrating content into practice pages where researchers can supposedly find everything they need to research and practice law, from current awareness and drafting tools to forms, treatises, and journals. Law firms are also building practice pages on their intranets so their attorneys can "live on their practice page" and go there when looking for information. They are creating online libraries.
Database finding tools, content groupings and sophisticated search engines are very helpful in navigating the vast universe of legal information, but they are only a start. As one law school librarian said, Google has framed expectations and made research look simple—"automagical"—when it is not. The real solutions to complex legal issues and problems require analysis and thoughtful conclusions. A noted West Coast law school in its mandatory legal research course taught by librarians has found it more effective to focus on a research process rather than sources. The process consists of:
- conducting preliminary analysis (identify the jurisdiction, key words, branch of government, multiple issues);
- selecting a good secondary source (treatise, legal encyclopedia, law review, etc.);
- consulting the best primary sources (opinions cited most frequently);
- updating and expanding to verify if authoritative (use built-in tools like headnotes, key numbers, Shepard's, KeyCite, or analytical material); and
- repeating the process using new keywords or issues raised in the research process.
The law librarians advise students to select and use three good words, neither too general nor specific, with no connectors, to search. Students are instructed to use the big search box, but then drill down to the right source. They are also advised about using Boolean and proximity operators like within sentence or paragraph and the exclamation point (!) to retrieve variations in root words. These tips are outlined in a template students can consult to organize their research process.6 Teaching "how" rather than "what" is much more effective in the long run.
Fortunate are the students who have had the benefit of courses like the ones at the law schools mentioned. They will be much better equipped when they arrive at law firms as new associates. Sometimes law firms find the level of preparation varies greatly. While most provide orientation for their new arrivals, the average time the programs can devote to legal research training ranges from one to four hours with additional classes on Lexis and Westlaw. In addition, there is usually practice specific training. After the first year, convincing attorneys to attend refresher and update sessions can be challenging.
Librarians and lawyers in firms work in an industry where the client base is seeking to optimize results while achieving maximum efficiencies. We are all under pressures to demonstrate value for the cost of services provided. Most large firms use research monitoring and tracking tools like OneLog®, LookUp Precision®, Research Monitor®, and Westlaw Analytics® to analyze database use and cost recovery. These systems help identify individuals who are incurring high charges and thus could benefit from more training. If a partner is concerned about a large amount billed to a client, the firm can use Smart Recharge or Westlaw Analytics to explain where the inefficiencies occurred. The documentation also can serve as encouragement for the user to attend more training.
Teaching and learning effective legal research methods always have been challenging. Google has only changed expectations. While powerful search engines have made the process seem easier, it really is more difficult. There are so many more places to look. If law school students and new lawyers learn a methodology to follow, they are more likely to become effective researchers. They won't stop with the first five results and think they have the answer. The best lawyers will delve deeper, consult experts, find the exceptions, and analyze and summarize their findings. They will stay at the forefront of understanding both the law and legal technology, and how to integrate the two. Only then will they excel and rise to the top of their field.
The views expressed herein are the author's, and are not necessarily the view of Skadden Arps or one or more of its clients.
1. From a May 14, 2014 phone conversation between the author and Craig Smith.
2. From a May 13, 2014, phone conversation between the author and Lynn Wishart.
3. DiCosimo, Maria, a research solutions specialist at LexisNexis, speaking of Lexis Advance.
4. Dahn, Mike, "Impact of New Legal Research Platforms on Attorney Research," Practice Innovations, July 2012, v.13, no.3.
5. From a May 16, 2014 phone conversation and emails between the author and Brian C. Quinn.
6. From a May 19, 2014 phone conversation between the author and a research law librarian at a West Coast law school.
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