It’s the kind of thing that articling students’ nightmares are made of — the wake-up-screaming-and-drenched-in-sweat kind of nightmares: you’ve botched your legal research and advised a client incorrectly.
It’s the kind of thing that articling students’ nightmares are made of — the wake-up-screaming-and-drenched-in-sweat kind of nightmares: you’ve botched your legal research and advised a client incorrectly.
“I’ve actually seen that happen,” says Connie Crosby, library manager for WeirFoulds LLP in Toronto. “Where the lawyer didn’t get complete information from his student’s legal research, and the other side had that essential case that the lawyer didn’t have . . . or when somebody’s giving a presentation and they’ve missed a big development that’s happened in the past week.”
Although these types of scenarios are the exception to the rule, the very real chance of an early career disaster means law students approaching their articles should be asking themselves if they really know how to perform effective legal research — while there’s still time for them to do something about it.
“When people get into the law firm, they’re really hitting the ground running,” says Crosby. “I think they’re at a real disadvantage if someone doesn’t know how to do the research. Sometimes people will arrive and that day they’re given something to research.”
Crosby finds articling students’ research skills vary greatly, from those who “know more about legal research than I do” to those where “I wonder how they graduated, to be honest.” But she and other Canadian law firm librarians and research lawyers seem to agree on a few things about the current crop of articling students.
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.
Failing to develop a plan of attack
“Younger people just tend to sit down at the computer and start banging away as if they were getting on the internet, doing a Google search,” says Rosemary Bocska, an independent research lawyer. “And that’s just not how legal research is done properly.”
Articling students need to realize that researching a question for a client suddenly imposes a whole new set of demands which can only be met with a strategic plan of attack.
“There’s a very different stress level,” says Crosby. “In law school you can take as much of your time as you want to figure out how to research something. But in a law firm, you’re being paid to research something. Your client is paying that bill — or your law firm is absorbing the cost. You want to have a strategy before you begin your research, and have an idea of how you’re going to do the research.”
“And they have to get the answer right,” she adds. “In law school, you can give five different opinions and discuss which might be right — in a law firm, they want the answer.”
In order to arrive at that right answer, what you really need to do is formulate your approach, says Bocska, because you’re never asked the easy questions. “You’re asked the very difficult questions, the esoteric ones, ones that may never have come up before,” she says. “And you’re asked to synthesize hundreds of years of precedent, analyze it, and that’s very different from the work you do in law school.”
The obvious first step to formulating a good research strategy is properly identifying the issues to be researched — which can be treacherous for new articling students, who have often had them gift-wrapped for them through law school. “The one thing that I uniformly see with the students that come into my class,” says Beatrice Tice, chief law librarian at the Bora Laskin Law Library at the University of Toronto, “is the inability to synthesize across a number of fields/areas/parts of the law to draw from them and come up with their research strategy. And again, that’s perfectly understandable, because they are in classes that are very compartmentalized. They take torts and that’s torts, and they take contracts, and that’s contracts. They don’t ever have an opportunity to be given a fact situation where there might be a tort problem in there, and there might be a contract law issue and they need to follow them all at the same time in order to do a good job.”
Next, the students have to plan out a series of steps that will both guarantee they don’t waste their time, and also achieve reliable results.
“I’ve certainly had students who’ve said, ‘I looked on Google and I didn’t find anything, now what do I do?’” says Shaunna Mireau, librarian with Field Law LLP in Edmonton, laughing. “New students don’t have a really good understanding of how the process of legal research is the same every time. You always look for secondary resources. You always tie that into what the legislation is on a particular topic — you always have the same pattern. It doesn’t matter if you have a deep, involved question, or a simple question. It’s the same process.”
Lack of familiarity with secondary resources
After the issues are identified and a plan of attack formulated, librarians and researchers agree it’s important to begin with secondary materials and take advantage of what work has previously been done on the topic; a huge time-saver that articling students tend to ignore because the resources are often not available online.
“They don’t come in having a good knowledge of certain key resources such as Halsbury’s, the Canadian Abridgement, the Canadian Encyclopedic Digest, the textbooks, etc.,” says J.A. Prestage, a partner at Blake Cassels & Graydon LLP and head of the firm’s legal research group.
Crosby says, “It’s less about the format itself but about what types of resources they use to start. They need to know a starting point, and a lot of times that’s commentary. The way it’s going is that — the generations coming up have different skills of learning — different ways that they learn. They learn more in an electronic environment, a gaming environment, that sort of thing. They really do learn in different ways from past generations, and that’s going to come into play in the future — how we all sort of learn to teach those people.”
Legislative research
Finally, librarians and researchers seem to agree that the most common deficiency in new articling students’ legal research skills is an inability to perform adequate statutory research: knowing how to find legislation (which involves understanding how legislation is published), how to update it, how to find historical legislation, and discussion surrounding why legislation was enacted.
“They struggle with legislation,” says Neil Campbell, law librarian and associate professor of law at the University of Victoria. “Partly because our system of legislation is kind of screwy . . . but also because it’s a case-based curriculum.”
“They’re typically pretty good at finding cases,” agrees Tice at U of T. “That’s reflected by the fact that we teach through the case-law method. They see cases a lot. They’re not so good at all with statutes and I think it’s part of the same reason. They don’t see and deal with the statutes.”
Prestage says this is something that articling students find to be different in the first few days of their new job. “Statutes play a far larger part in practical law than they do in law school. So learning to think about statutes as being one of the first sources you go to, learning how to research statute law, learning how to update statute law, learning how to find cases that consider the statute — that’s a whole area that law school doesn’t tend to focus on.”
Getting ready for articling
Taking an advanced legal research course in law school is universally recommended. However, the catch is that they are not universally available. Some law schools do not offer such a course, while in others, spots in the classes are limited. For example, Tice reports that 12 to 25 applicants are being turned away from each 25-person legal research skills course offered at U of T, while Campbell at UVic also reports turn-aways in double digits. Moreover, some students may not have time to add such a course due to participation in competitive moots, legal aid clinics, and other extracurricular activities.
Students unable to enrol in an advanced legal research class are well-advised to take advantage of library staff and try to learn about the resources on their own time; and to remember not to panic — most of the big firms offer legal research training to new articling students as refresher courses.
Students heading to small firms, government, or elsewhere need to realize that there are other resources available to help them develop their skills.
“There are web sites and blogs and all kinds of resources for the electronically-minded articling student,” says Mireau. “And there are all kinds of continuing legal education seminars that are offered through the bar associations and the law societies.” She adds that recent graduates should not forget their most valuable resource — the librarians and support staff working in the law school, courthouse, and law firm libraries.
“It’s the librarians who come in and try to bridge that gap between law school and articling and get students to move successfully from one to the other — without that abject terror,” says Tice. “We just want to get them to excel.”
Students might even discover that legal research can be fun. “It’s like solving puzzles,” says Mireau. “Like finding a 1907 Ontario statute that’s relevant to a case and in our favour.
“It’s the one way that I, as a librarian, get to be a superstar in the law firm,” says Mireau, laughing. “And I try to pass on those superstar moments to the students.”
