An Impossible Task but Everybody Has to Do It - Teaching Legal Research in Law Schools

Law Library Journal

Volumn 89, Issue 3, 1997, Pages 415-441

  Lynch, Michael J ^a  

^a UNIVERSITY OF ILLINOIS AT CHICAGO   (United States)

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EID: 0031496085     PISSN: 00239283     EISSN: None     Source Type: Journal    
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References (49)

1. Most references in this essay are to paper forms of research materials. As online and electronic tools come to dominate legal research, the process is changing, but the categories will remain much the same, and it is suggested that for the foreseeable future the most effective introduction to sources such as citators, digest systems, A.L.R., and looseleafs will come from examination of paper copies, no matter how available these sources are in digital forms.
2. This is the situation involved in Superior Form Builders v. Dan Chase Taxidermy Supply Co., 74 F.3d 488 (4th Cir. 1996), and Hart v. Dan Chase Taxidermy Supply Co., 39 USPQ 1310 (2nd Cir. 1996). For the purpose of discussion here and later, I will assume that the problem arises at a time when the Dan Chase cases were new enough that a researcher might not find them without special effort.
3. There are, no doubt, some researchers who would take a long time to realize that the question involves copyright, but their problem does not arise from inadequate training in research methods.
4. Jill and Christopher Wren suggest that, with proper instruction, reading a case is the same as understanding it: "Until researchers read the authorities they have retrieved from the library shelves, they cannot know whether they have found the law they seek and cannot tell whether they should continue their search. They haven't found the law; they have only found law books. Similarly until researchers read the authorities they have located they cannot determine the authorities' significance and therefore cannot update the law . . . students learn effective reading techniques . . . through instruction that expressly explains to students the purposes, techniques, and thought processes involved in reading the law." Christopher G. Wren & Jill Robinson Wren, Teaching Legal Research, 80 L. LIBR. J. 7, 47 (1988). The suggestion is that students can be taught to read so that they will quickly understand the law as they read cases. I suggest that even highly intelligent and experienced lawyers (outside of their specialty) often read and misunderstand - and knowing they haven't quite got it, they read again and sit and think, read other cases and commentary and think some more, and then, maybe, the light dawns.
5. This is not intended to suggest that there is a right answer for such questions, a correct application of the authorities to which all right-thinking lawyers will assent. The nature of such problems is that the authorities are inconclusive; for this reason, the deeper the researcher's understanding of the authorities, the more convincing will be the argument resulting from that understanding.
6. It may now seem obvious in 1997 that Griswold v. Connecticut, 381 U.S. 479 (1965), might be the basis for a claim that state abortion laws violate a fundamental right, but in 1970 it was a more imaginative jump. The use of authority even more distant from the question at hand than Griswold was distant from abortion is a frequent possibility in legal research.
7. See I. Trotter Hardy, Why Legal Research Training Is So Bad: A Response to Howland and Lewis, 41 J. LEGAL EDUC. 221, 222 (1991). Some graduates find employment as judicial clerks in which they do a great deal of research, but this experience cannot serve as the model for evaluating training, since they rarely start from scratch, instead beginning with the briefs of parties that explain the issues and present the materials that a lawyer has already unearthed.
8. Gregory Koster, Director of the Law Library at CUNY Law School at Queens College, has published an account of an extended legal research course that, he asserts, leaves students better prepared for law office assignments than students from other schools. Evidence is anecdotal, and a planned survey has not yet appeared. See Gregory Koster, Teaching Legal Research: The View from Utopia, in EXPERT VIEWS ON IMPROVING THE QUALITY OF LEGAL RESEARCH EDUCATION IN THE UNITED STATES 53 (1992) (hereinafter EXPERT VIEWS). It would be strange if some schools did not have legal research programs that produced better results. However, the matter is closely watched, and if any conclusive evidence of the superiority of one program should emerge, surely most schools would consider the modifications of their curriculum necessary to achieve similar results.
9. The Transformation of Law and Its Consequences for Legal Research, in GRAYLYN CONFERENCE REPORT 1990, at 24, 37 (Remarks of Joan S. Howland) (Donald Dunn ed., 1991).
10. Although law librarians report that new lawyers often do not fully understand the nuances of Shepard's Citations, see, e.g., Joan S. Howland & Nancy J. Lewis, The Effectiveness of Law School Legal Research Training Programs, 40 J. LEGAL EDUC. 381, 386 (1990), it is unlikely that they have missed the very idea of a citator.
11. A startling misconception as to when research begins is found in CHRISTOPHER WREN & JILL ROBINSON WREN, THE LEGAL RESEARCH MANUAL: A GAME PLAN FOR LEGAL RESEARCH AND ANALYSIS (2d ed. 1986). They identify "critical fact-related steps that must precede research in law books. These steps are: (1) gathering the facts; (2) analyzing the facts; (3) identifying the legal issues raised by the facts; (arranging the legal issues in a logical order for research." Id. at 29 (emphasis added). The identification and ordering of issues before using law books presumes that the researcher has a thorough knowledge of the area of law in her mind. Specialists have such control over a single area; law school graduates rarely do; law students never do. Instructors may be well advised to select problems for which first-year students have some background, but even experienced lawyers arrive at issues by a recursive analysis, starting with facts and impressions of law, looking at a source, reconsidering the facts, finding another source, etc.
12. In the context of legal analysis, the term bears a connotation similar to the currently popular phrase "politically correct," but in its original, nonpejorative sense.
13. See, e.g., Thomas A. Woxland, Why Can't Johnny Research? Or It All Started with Christopher Columbus Langdell, 81 L. LIBR. J. 451, 462 (1989); Joan S. Rowland & Nancy J. Lewis, supra note 10, at 386; Donald J. Dunn, Why Legal Research Skills Declined, or When Two Rights Make a Wrong, 85 L. LIBR. J. 49 (1993).
14. See, e.g., Thomas A. Woxland, Why Can't Johnny Research? Or It All Started with Christopher Columbus Langdell, 81 L. LIBR. J. 451, 462 (1989); Joan S. Rowland & Nancy J. Lewis, supra note 10, at 386; Donald J. Dunn, Why Legal Research Skills Declined, or When Two Rights Make a Wrong, 85 L. LIBR. J. 49 (1993).
15. It is difficult to distinguish writing problems from thinking problems. The expression of muddled thinking may give the impression that writing skill is inadequate, but in fact, clear thinking cures many apparent writing problems.
16. The use of printed material may in fact facilitate legal thinking due to the ease of scanning or of returning to a passage previously read, and the possibility of having several texts close together for comparison.
17. Their thinking process may be guided by a treatise or law review article, or even an encyclopedia, but it seems to happen most frequently in practice that the difficult problem falls just to the side of authoritative discussion. This sort of problem, naturally, is assiduously avoided in assignments given to students of legal research. It could not be otherwise.
18. JOINT COMM. TO STUDY COMPUTER TECHNOLOGY IN LEGAL EDUC., UNIV. OF DAYTON SCH. OF LAW & MEAD DATA CENT., INTERIM REPORT 16 (Remarks of Lance Dickson) (1993).
19. A purely imaginary supposition at the time of this writing.
20. It has always been the case that deep understanding of cases is the target. The distinction between knowing what a case says and understanding it is an old one. [T]he reason of the law is the life of the law, for though a man can tell the law, yet if he knows not the reason thereof, he shall soon forget his superficial knowledge. But when he findeth the right reason of the law, and so bringeth it to his natural reason, that he comprehendeth it as his own, this will not only serve him for the understanding of that particular case, but also many others, for cognitio legis est copulata et complicata, ["Knowledge of the law is interconnected and folded together."] and this knowledge will long remain with him. COKE, FIRST INSTITUTES, 183b.
21. As part of its "Statement of Fundamental Lawyering Skills and Professional Values," the ABA's MacCrate Report described the basic research skills essential for competent lawyering. See TASK FORCE ON LAW SCHOOLS AND THE PROFESSION: NARROWING THE GAP, AM. BAR ASS'N, LEGAL EDUCATION AND PROFESSIONAL DEVELOPMENT - AN EDUCATIONAL CONTINUUM 157 (1992).
22. Robin K. Mills, Legal Research Instruction in Law School, the State of the Art or, Why Law School Graduates Do Not Know How to Find the Law, 70 L. LIBR. J. 343 (1977).
23. Woxland, supra note 13.
24. Dunn, supra note 13. The assumption implied in this title, that legal research skills declined, does not necessarily point to a golden age of research training. The complaints are consistent across the years; perhaps new graduates have declined from dumb to dumber.
25. See, e.g., Koster, supra note 8; Perspectives: Teaching Legal Research and Writing, a journal distributed by West Group, is full of short essays suggesting ways to improve research and writing programs and courses.
26. See Howland & Lewis, supra note 10.
27. Hardy, supra note 7, at 222.
28. With legal research, as with word processing, there is probably an amount of practice after which the skill will remain despite a long period of disuse, but for legal research skills that period is surely longer than an academic year, and the amount of practice surely greater than that demanded from law students under any program likely to be adopted.
29. The "principles" in this field are likely to be rules of thumb, such as Bering's "first rule of research" on his popular series of instructional videotapes. ROBERT C. BERRING, COMMANDO LEGAL RESEARCH (Legal Star Communications 1989) ("find someone who has done the work for you").
30. Wren & Wren, supra note 4.
31. Robert C. Berring & Kathleen Vanden Heuvel, Legal Research: Should Students Learn It or Wing It? 81 L. LIBR. J. 431 (1989).
32. WREN & WREN, supra note 11, ch. 6 ("Step 3: Updating the Law").
33. See id. at 437. They also suggest that first-year students are not ready to learn. See id. at 441.
34. Christopher G. Wren & Jill Robinson Wren, Reviving Legal Research: A Reply To Berring and Vanden Heuvel, 82 L. LIBR. J. 463 (1990).
35. Robert C. Berring & Kathleen Vanden Heuvel, Legal Research: A Final Response, 82 L. LIBR. J. 495 (1990).
36. WREN & WREN, supra note 11.
37. BERRING, supra note 28.
38. "We think that students become much better users of Shepard's if we explain to them the dual function of the citators, how the Shepard's format evolved and how it has affected the way we think about law. We emphasize the Shepard's philosophy of providing every possible citation to a case or other cited material and discuss the different kinds of information available in the various Shepard's." Berring & Vanden Heuvel, supra note 30, at 445.
39. "[In our approach] the bibliographic information appears only in the amount necessary to advance an understanding of the legal research process . . . . [I]n the course of explaining the actual process of researching legal problems and clarifying which law books to use to carry out each step in the legal research process . . . process-oriented instruction can cover less bibliographic information, but more precisely tailor this information to the researcher's practical need. Wren & Wren, supra note 4, at 18.
40. Unfortunately, it appears that the Wrens' approach makes Shepard's the centerpiece of their section on "Updating the Law" (chapter 6), but neglects it in the section on "Finding the Law" (chapter 5), where the references to Shepardizing are brief, merely referring to chapter 6. WREN & WREN, supra note 11, at 74. This is a striking downgrading of what may be the most efficient method of proceeding with research once a good case has been found.
41. They could easily be inserted when a memo-writing problem is distributed in a form resembling an informal assignment from an employer. The assignment could include the suggestion: "I think there's a case from Vermont, or maybe New York on this topic. The plaintiff's name (or maybe the defendant) was Rokeach. The facts involved a fire in a factory and I think it arose in the eighties."
42. I have a vivid recollection of the way in which I called upon this particular legal research technique on the occasions (about once a year) when I needed it when practicing law. My first reaction would be to think, "There's a source for that information, and I used to know it." Then after a pause of various durations I would have a mild "aha" experience, thinking, "Digest . . . volumes at the end." If it was a federal case sooner or later I would have another recollection about the division of the digest of federal cases by time period ("red for the oldest, green for more recent").
43. On such exams right answers correspond to diligent study, but not, perhaps, to research skill. Some sample objective or essay questions: I. The following are legal publications: 1. C.F.R.; 2. Restatement (Second) of Torts; 3. United States Reports; 4. Supreme Court Reporter; 5. General Digest. Which of these should always be regarded as primary sources? A. All of the above. B. 1 and 3. C. 1, 2, 3, and 4. x D. 1, 3, and 4. E. 3 and 4. II. Which of the following are works in which one would not expect to find references to West key numbers: 1. C.F.R.; 2. C.J.S.; 3. United States Code; 4. F.R.D.; 5. Am. Jur. 2d. A. 3 and 5. x B. 1, 3 and 5. C. 1, 2 and 5. D. 1 and 4. E. 1 and 5. III. List three functions of Shepard's Citators IV. Explain the relationship between the Code of Federal Regulations and the Federal Register.
44. See Bryant G. Garth & Joanne Martin, Law Schools and the Construction of Competence, 43 J. LEGAL EDUC. 469 (1993). The respondents included Chicago lawyers within five years of law school graduation, law partners responsible for hiring at Chicago firms, and lawyers within ten years of graduation practicing in Missouri communities under 20,000 in population or in the city of Springfield, Missouri (population 155,000). On questions regarding legal research skills, the answers were consistent enough that it is not necessary to distinguish among the groups.
45. I have used the Chicago lawyers' responses for precise percentages. The rural lawyers were more likely to say that a skill was essentially learned in law school, but their rankings were generally consistent with the city practitioners.
46. Garth and Martin tabulate the opinion of their lawyer respondents as to whether a subject "can be taught effectively in law school" as well as whether their own skills were essentially learned there. The fall-off from those who believed written communication could be taught in law school (91%) to those who felt they had actually learned it in law school (32%) is particularly dramatic. Legal research, on the other hand, drops off only from 91% (can be taught) to 74% (I learned it there). Garth & Martin, supra note 43, at 479. Perhaps this indicates that lawyers know they learned a lot about writing after law school, but aren't so sure they learned much about research after graduation. If so, the lawyers' opinions may contradict my assertion that real learning of legal research skills happens with the intense experience of practice. Perhaps, however, it reflects that many of the respondents have not done much research.
47. A strange result comes from a question as to whether too much law school time was devoted to each category. The leading contenders for too much time honors were: substantive law (13% judged the time excessive); Computer legal research (7%); and library legal research (6%). Id. 47. Garth & Martin, supra note 43, at 477. Among Missouri and small firm Chicago lawyers computer legal research scored 3.57. Recent adjustments in the price structure for LEXIS and WESTLAW designed to make the systems more attractive to small firms and solo practitioners may change this very low rating in the future.
48. A further indication that librarians are more distressed by the research skills of new lawyers than employers are comes from the extended title of another librarian's contribution to the debate: Michael J. Slinger, Placing the Horse Before the Cart: The Need to Convince Law Firm Partners and Law Professors of the Inadequacy of Legal Research Training at Law Schools as a First Step in Developing a Successful Training Solution, in EXPERT VIEWS, supra note 8, at 91.
49. See FRANCES ZAHN ZEMANS & VICTOR G. ROSENBLUM, THE MAKING OF A PUBLIC PROFESSION (1981). The essential data from this study is summarized by Garth & Martin, supra note 43, at 494-96.