II. Researching Novelty

Researching novelty is a hallmark of professional practice: “As the corpus of knowledge grows, members of a profession commit general principles to memory and conduct research when necessary to inform themselves about specialized or unusual cases.”13 Online research allows practitioners in any locale to keep abreast of cutting-edge legal developments, making novelty less forbidding and more adaptable to local practice. Practitioners increasingly rely on the Internet for fact-finding and legal information. Although conducting in-depth legal research on the Internet pales in comparison to searching commercial legal databases (Lexis and Westlaw), it has become an invaluable source of legal information for legal professionals and laypersons.14 The Internet has brought significant pieces of legal information to the attorneys' desktop from court dockets and pleadings to extensive coverage of current federal and state legislation and regulations. Through government, law school, law firm, bar association and public interest web sites, it provides hard to find information needed in routine and specialized cases.15 Commercial legal databases affordable16 to public interest lawyers support legal research well beyond the Internet's current reach. Law students, despite having virtually unlimited access to these databases, rarely graduate versed in the many specialized practitioner research materials that are crucial for researching novelty.

A multi-faceted, habitability problem borrowed from the clinical literature suggests opportunities for enriching the clinical curriculum with litigation research methods taught in advanced legal research courses:

Meanwhile the sessions on habitability heated up. Because of the building's disrepair, many of the tenants were living in apartments with water coming in during the rainy season. As a result of the moisture, paint was peeling and many tenants suffered health impairments from mildew and mold exposure . 17

When the article containing this account was published in 2000, mold litigation was in its genesis. Soon thereafter, mold litigation evolved into a highly specialized practice area perhaps best described as a hybrid of toxic torts and construction law.18 Its founders paved the way for a new cause of action for pervasive and persistent mold problems causing property damage and personal injury in homes, schools and government buildings.

For law students to truly become educated researchers they must know how to track new legal developments and emerging areas of the law so that they may provide additional remedies or options for their clients.19 Teaching students how to draw on the expertise and resources of specialists (in the case of mold litigation-attorneys, toxicologists, epidemiologists, and remediation experts) prepares students to stay on top of new legal theories and causes of actions.20 In the mold problem scenario (and by extension to any new and rapidly developing area of the law of potential interest), the type of research described below would be essential, because traditional legal research avenues (treatises, law reviews, legal encyclopedias, digests, ALR, etc.) often lag as the story unfolds.21

A. Mold Litigation Case Study

Assume a low-income homeowner with serious health problems contacted your clinic in August 2001. The prospective client believed mold infestation caused her illnesses. Because of her deteriorating condition, she is afraid of losing her job and home. Consider the problem from separate but related research instruction angles: first, what the clinic student would had to have researched to develop a case theory in August 2001; second, the type of instruction the clinic could have provided to prepare students to conduct specific research in that particular matter and other cases. The homeowner tells you:

1. She purchased her home in 1997.

2. Her homeowner's insurance policy excluded coverage for mold damage.

3. In 1999 after a roof leak, mold was detected on the ceiling.

4. Mold spread.

5. Asthma and other respiratory conditions developed.

6. Insurance company refused to pay her remediation costs.

7. She now works part-time and is behind on her mortgage.

These facts would almost surely have prompted basic research for breach of contract, bad faith and other established insurance law causes of action. But would a general practitioner at that time have also been aware of the emerging specialty in mold litigation and known how to research it sufficiently to bring such a claim for the first time? Possibly yes, as to the former; probably no, as to the latter.22 As for the student, probably no on both counts, unless from personal experience or a chance exposure in law school to the evolving legal theories associated with mold infestation. Boilerplate exclusions in the insurance policy could have diverted lawyers unfamiliar with the highly specialized field of mold litigation from pursuing a valuable emerging remedy for the client.23

Prior to 2001, a few pioneers of mold litigation had obtained verdicts and settlements on mold claims, but the breakthrough case, Allison v. Fire Exchange (“the Marbury v. Madison of mold cases”),24 was in its pre-trial stages. When the Texas jury in Allison returned a $32 million plaintiff's verdict in May 2001, the defendant cried foul and the insurance industry took sharp notice.25 Defendant appealed claiming that plaintiff had failed to establish medical causation. Plaintiff argued that the trial court had improperly excluded plaintiff's medical expert's causation testimony. A clinical student, presumably competent in standard legal research techniques learned in the first year, would have been hard pressed to find information about the Allison case, relying exclusively on traditional first year research methods. Prior to December 2002 when a Texas Court of Appeals reduced the jury award to $4 million, the litigation flew under the radar of traditionalfirst year research sources and techniques. Until the appellate decision became available on Lexis and Westlaw in early 2003, jury verdict reports,26 practitioner-oriented litigation reports and newsletters27 and newspapers would have been the main sources a student researcher would have had to use on Lexis and Westlaw to identify and track this litigation.

Many students do not become familiar with these specialized sources in law school unless they take an advanced research course or special training. Nor do many become familiar with or adept at searching law firm web sites that often contain valuable current legal information. Firms specializing in new or developing practice areas often include substantive legal analysis on their web sites targeted to existing and potential clients.28 In this example, the student could have received a crash course in mold litigation practice by visiting the web site of plaintiff's lawyer in the Texas case, Robertson & Vick (“RV”).29 On the RV web site the student would have learned of the Texas verdict, the Mealey's Mold Litigation Report (tracking mold litigation nationwide), the firm's other successful mold verdicts and settlements, and other useful data. Solely from a legal research perspective, the site summarizes theories of recovery in mold claims and points the researcher to source documents-complaints, motions, briefs, filed in all kinds of mold cases-that can be used as models in case preparation.30

RV also gives the researcher a foothold into critical interdisciplinary materials that are needed to practice in this emerging field. Although a $32 million verdict was sure to catch the attention of the personal injury bar, the medical causation ruling has continued to be a difficult obstacle for plaintiffs in similar cases.31 Plaintiffs' attorneys new to the field would have to get up to speed quickly with existing medical studies about mold and its documented health hazards,32 master the case law, and commission their own studies in working with consultants and experts to prove causation.33 Most law students are unfamiliar with the scope of research conducted in law practice. Without knowledge of and access to the universe of mold research sources touched on in this section, legal assistance to the homeowner in this example would have been compromised.34

How do students learn to expand their research horizons to find specialized practice materials on web sites, interdisciplinary sources, and other factual information?

In advanced legal research at the University of Missouri-Columbia, we use the mold litigation example (and other scenarios) to illustrate general principles for conducting this type of research. The goal is not to develop students' expertise in one substantive area, but to provide a model using an unfamiliar, developing area of the law that is highly research dependent. Having studied the context in which a relatively novel cause of action matures into a recognizable legal claim, students will be more confident thinking outside the box in practice (beyond what they already know or can readily find). Examining research conditions as they once existed in a particular area of the law and comparing current conditions informs students about the ebb and flow of law practice.35

It helps to understand the context in which real life problems require research. Clinical education recognizes the importance of teaching case theory.36 Advanced legal research emphasizes that research sources and techniques are problem-solving tools, not ends in themselves. Pedagogical hooks should be used invigorate classroom instruction (and make the sources less abstract).37 Before we go over the sources for researching a toxic mold case, students read “Haunted by Mold”38 a New York Times Magazine article about the Allison case. This compelling account provides a more personal perspective than what the students would get just reading legal materials.39 A wealthy Manhattan couple whose Texas mansion dream home turned into a mold-infested nightmare frames the drama. The husband, Allison, becomes disabled, suffering severe memory impairment. Melinda Ballard, Allison's wife, between bouts of coughing up blood, battles with insurance companies and enlists a battery of attorneys, toxicologists and mold remediation experts leading up to the multimillion dollar verdict.

Although the article is written for a non-legal audience, it is replete with valuable practice lessons. It tells how a Texas jury responds to a wealthy east coast plaintiff, whose circumstances and perilous health condition could ordinarily generate great sympathy, but whose persistence and belligerence further complicate case management. The article describes mold litigation in other parts of the country involving less well-heeled and more sympathetic plaintiffs. It identifies legislative responses such as California's toxic mold law and early regulation of mold remediation providers (a “cottage industry” of sorts).40 Personal injury lawyers reading this article would gain a similar foothold into the medical studies and the language of mold found on the RV website. Law students would learn how Robertson's construction background helped him become one of the nation's leading mold litigators.41 The article includes various experts and organizations attorneys would want to consult if handling their first mold case.

In sum, the article expands and promotes effective legal research by: (1) orienting the reader to a new and evolving practice area; (2) referencing a specialized practitioner source which (conveniently for our teaching purposes) happened to be Mealey's Mold Litigation Reports; and (3) showing students that researching legal problems often depends on non-traditional legal research. Assigning a newspaper account of the rise in mold litigation introduces students to the broader societal ramifications of the mold problem.42 This background helps students build frameworks for assimilating the law by encouraging them to think about how they might apply the mold resources we show them in an actual case.43