Legal research via computer. For every fan, there is a dissenter. No doubt it is a lawyer’s nature to dissent, particularly where such dissent goes against the grain.
Scott P. Stolley, Esq. objects vehemently to the practice of researching via electronic database in his article entitled Shortcomings of Technology: The Corruption of Legal Research. Like all of the dissenters that I have read before, Mr. Stolley laments that new lawyers who are trained in computerized research lack the proper conceptual foundation necessary for locating the correct authority. Mr. Stolley believes that "keyboarding”, like “snowboarding”, is a pastime reserved for the younger generation.
Mr. Stolley describes two approaches to brief writing: research mode and intuitive mode. The first entails doing the research and crafting the brief around what is uncovered. The second involves conceiving of the argument and then conducting the research to support it. Mr. Stolley, an appellate lawyer, describes his own process as follows:
I tend to combine the two modes. I use the research mode to find the broad outlines if the topic is unfamiliar to me and the intuitive mode to fill in the details or the subsidiary arguments. If, however, I am familiar with the topic, I work more in the intuitive mode. Either way, a first draft of one of my briefs will always lack some of the citations that I need. Often, I’ll ask an associate to find cases to support those legal propositions that lack citations in my draft brief. In every instance, I’m confident that a case is out there, or else I wouldn’t have included the proposition in my draft.
Mr. Stolley, who admits to the use of research mode to find broad outlines for unfamiliar topics, criticizes a new associate’s use of the computer for legal research when she is unable to locate two cases that he easily found in bound volumes. Mr. Stolley concludes from his example that new law graduates have difficulty with concepts and analogies and that this seems to be an endemic weakness. Almost without analysis, Mr. Stolley concludes it must be due to training in computerized legal research.
I have a few issues with the points and conclusion. First, even Mr. Stolley allows for research mode for achieving understanding of an unfamiliar area of law. Most areas of law are unfamiliar to a new attorney. I challenge Mr. Stolley to find any new associate better equipped to win a time-trial research war against a seasoned researcher. Whether trained in book or computer research, the new associate has limited understanding of the broader context and concepts in any area of law.
Next, do law students get no training in book research? I passed by my old law school the other day and the library was just as full of books as it was many years ago when I attended and plumbed the depths of the stacks. I graduated from law school nearly a decade after Mr. Stolley and book research was heavily emphasized. I do not claim to have first hand knowledge of the current law school curriculum across the nation, but I would be surprised if there is no book research taught.
Next, even if instruction in book research is taking second place to instruction in on-line research, there are still ways to train lawyers to seek out the broader contexts in the on-line arena. There are functions to duplicate the Words & Phrases authority cited by Mr. Stolley using the field functions in the boolean search option. There are Table of Contents links for all of the on-line legal periodicals that offer context in a given area of the law. One can pull an ALR article on-line and see the broad strokes of a legal concept. Statutory sections can be viewed in the context of an entire chapter, with links to related regulations and authority. You can still perform key number and headnote searching in Westlaw. Citator services permit the researcher to troll for related holdings. Results Plus in Westlaw suggests other authority related to the search query that the researcher may not have considered.
The attitude towards proper research is not dictated by the tool employed, but rather, the education and experience bestowed upon the researcher. A professor can point his or her students at either books or a computer screen, but neither tool will serve its best purpose without an understanding of process. Lawyer-training occurs inside and outside of the classroom. Cursing the newfangled tool is an easy out for lawyers who have forgotten the steep incline facing new associates fresh out of school. If Mr. Stolley is displeased with the research skills of his associates, perhaps he could offer them instruction in intuitive thinking. He might take some time to describe his own process and even ask them to consider assisting him in crafting the argument before sending them to find a discrete case. Armed with the broader context. his associates might then be able to employ the tool they are most comfortable using to flesh out the brief. It is amazing what can be accomplished with a little perspective and a simple explanation of the importance of context.