III. Practitioner Research Transitions

What skills do public interest lawyers need to conduct sophisticated practitioner research? For most new attorneys who possess basic technology skills, the shift in emphasis from print to online research (both fee-based and free sites) has been deceptively seamless. Beneath the surface of technical proficiency, many new lawyers are unprepared for practitioner research complexities and applications. This section includes clinical concerns about students' basic legal research habits and their unfamiliarity with unwritten law and rules in practice. It also considers a broader series of research transition challenges. Expanding legal authority boundaries, researching relevant audiences, and determining judges' authority preferences may be unfamiliar concepts to most law students, but they are crucial to understanding and conducting effective practitioner research.

A. Clinical Legal Research Concerns

The legal profession's longstanding dissatisfaction with new lawyers' research skills is also heard in the clinical literature. Wortham provides an excellent example of online excess from an exercise in which she required student externs to keep research logs and compare their results.

Almost all the students . . . began and almost exclusively used full text LEXIS and WESTLAW searches, which retrieved little or nothing of use to the problem. [The] librarians who taught a research strategy class on what could have been found in our library, found a comprehensive answer in two treatises available in our library. No student ever found them, and almost none looked at any secondary sources. 44

Wortham's recent tribute to Bellow's and Moulton's foundational work, The Lawyering Process Materials for Clinical Instruction in Advocacy includes several of their concerns about law students' research skills.45 Unfortunately, many of the deficiencies they observed still carry over to law practice.

Bellow and Moulton were concerned that students:

are not trained in law school to perform the kind of legal research and analysis necessary for preliminary legal research to consider how to “construct the case.” 46

Reaction:

Legal research and analysis go hand in hand, but it takes practice and perspective to become proficient at both. Too often students lose sight of the big picture by hunting for the perfect case instead of thinking about how to construct the case. Preliminary legal research should provide a snapshot of relevant legal principles and rules, examples of successful and unsuccessful strategies from similar cases, and alternatives. Advanced legal research courses introduce students to case valuation methods (jury verdict and settlement research), to sources identifying the elements of potential claims, and to more extensive case development materials (forms, checklists, sample pleadings, etc.). These resources are often more productive than intensive case research when beginning to construct the case.47

Bellow and Moulton argued that students:

know only how to do complete, painstaking legal research necessary in briefing an issue for an appellate court but do not know how to do twenty to sixty minute visits to the library that will provide enough background to know what to seek in interviewing the client, drafting pleadings, and questioning witnesses. 48

Reaction:

Law schools should integrate research instruction throughout the curriculum. Besides signaling its importance it would help students see that research is not a one size fits all process. Shorter research assignments in advanced legal research, client counseling, evidence, negotiation, pretrial litigation, and trial practice courses model different kinds of research needed for interviewing, drafting, and questioning. Impose shorter turnaround times, require oral reports and emails instead of memo writing, and have students apply research in drafting client letters, complaints, interrogatories, direct examinations, briefings for legislators, updating the partner's CLE presentation, etc. Teach students how to speed research when a preliminary answer is needed quickly; teach students how to confirm their findings and apply the information appropriately.

Bellow and Moulton believed that their students:

do not know how to handle statutes and regulations and do not have the needed skills to parse a statute and break it into elements. 49

Reaction:

Many students do not fully grasp the distinctions between the two. Many new lawyers have not seen the CFR, Federal Register, or comparable state publications. Legislation and administrative law courses should include statutory and regulatory research components. Students need to understand how critical definitions, scope, and purpose sections are in understanding statutory and regulatory schemes. They also need to understand the advantages of researching statutes and regulations initially in secondary rather than in primary sources. Practitioners have long turned to looseleaf services for “one-stop” research, integrating statutes, regulations, agency decisions, and case law in a single area of the law. The editorial commentary provides basic background, context, and analysis. Finally, statutes and regulations have always been more difficult to research online than case law. With students' obvious preference for online research, teaching them in law school how to use new system features that allow researchers to view a statute in the context of the sections surrounding it and to retrieve related sections is essential.50

Bellow and Moulton observed that students:

have trouble organizing large bodies of law in their head. Written guides, desk references and annual surveys can help to make judgments at stages about "what the law is. 51

Reaction:

Students need to learn how practitioners do this. Legal newsletters, litigation reports, and other current awareness tools are readily available on law school Lexis and Westlaw subscriptions. Law firm and legal organization web sites often provide cutting edge analysis of “what the law is.” Advanced legal research teaches students how to find resources that organize large bodies of materials for them, but also how to create these tools for themselves.52

Bellow and Moulton noted the organizational, time management, and strategic aspects of research

Students do not know when to stop researching, thus do not develop usable research skills, and hence are less willing and able to do relatively simple research jobs. Harking back to objectives in creativity, the authors discuss with student readers the need to avoid "functional fixedness"-the tendency to see only routine stereotyped ways of solving problems. 53

Reaction:

Not knowing when to stop researching is common. When different sources and research methods yield the same authorities, it is easier to wind down research than when no authorities have been found. Treasure hunt research exercises may be useful for familiarizing students with specific sources, but bear little connection to real life research. Fortunately, legal research pedagogy has become more sophisticated in recent years. Advanced legal researchers know there will not always be authority directly on point, but are persuasive in analogizing their client's “unique” circumstances to recognized principles and rules of law. They are similarly skilled in coping with adverse authority.54 Teaching research in connection with other problem solving skills (e.g., as part of a clinical skills course) discourages functional fixedness and promotes informed creativity.

Bellow's and Moulton's observations and Wortham's example of her students' online dependence identify symptoms of poor legal research.55 Some of these symptoms can be addressed in legal research courses, externships, and clerkships but, as explained below, traditional legal research fulfills only part of a practitioner's and client's research needs.

B. Researching Unwritten Laws and Customs

Exacerbating new practitioners' uncertainties, local legal customs and practices trump some of the fundamental research principles and rules students learned in law school.

Seielstad's warning about unwritten laws and customs in local legal cultures alerts students to a research curve that often catches them off guard.

None of these rules may be derived from any written source; indeed many are contrary to written rules that purportedly govern the proceedings. Such rules are applied, nonetheless, with sufficient regularity by particular courts and/or magistrates and enforced by local practitioners such that they acquire the force of law and may be ascertained and predicted by the thoughtful and informed practitioner. 56

Describing their first encounter with unwritten rules and local customs, Seielstad captures a common reaction (or perhaps overreaction). “For many, this poses a fundamental crisis-a clash between what they expected the practice of law to be like and what they find the actual practice to be like.”57 Seielstad's Ohio unwritten examples include a local domestic relations court, contrary to statutory law, granting divorce only on grounds of incompatibility; local practices discouraging evidentiary hearings in domestic relations cases; and non-accommodation of jury trials in forcible detainer actions where the statute explicitly provides for jury trial.58 She expertly navigates these research landmines, offering sound advice on legal research case planning:

[s]tudents should be encouraged to expand their legal research plan to include information about the unwritten legal rules and sources of information  . . . .   [M]astery of the written law alone may not adequately prepare the student for all rules that may govern a case. Instead, the student will have to supplement his or her legal research plan with some strategies for determining what unwritten rules or local customs and practices may apply to the proceedings. 59

Clinical students, more so than students in any other law school course, are likely to encounter unwritten local rules and customs. Conducting careful research and consulting with clinical faculty help these students scout local conditions and practices.

C. “De-Legalizing Law” - Proliferating Non-Legal Authority

The study and practice of law have become increasingly interdisciplinary. As online content from law-related disciplines grows, lawyers have more information at their disposal than ever before for persuading judges and other interested parties. Price and Percy sketch the broadening landscape:

In preparing for trial, advising clients, and drafting legal documents, today's practitioner is increasingly called upon to consider sources that were once not part of the legal research lexicon. Statistics, economic analyses, accounting rules, foreign countries' cultural mores, and medical studies (among others) all may impact the situation that causes a client to seek legal representation. From legal academia-where classes and clinics expose students to a wide variety of scholarship, and where journals are devoted to multidisciplinary subjects-to law firms that employ non-legal professionals (economists, nurses, accountants, computer scientists), the legal environment places an increasingly high value on scholarship and expertise developed outside the legal profession. 60

Schauer and Wise characterize the “phenomenon” of the rise of non-legal information in law practice as the “delegalization” of law. Their research documents courts' increasing citation of “sources of information not part of the traditional hierarchy of legal authority.”61 This development challenges traditional authority norms.

[L]aw, itself an authority-soaked practice, had traditionally drawn a distinction between good and bad authority, privileged and nonprivileged authority, and authorities that rank higher or lower in the hierarchy of authorities. Just as a recent decision of the highest court within the same jurisdiction as the deciding court ranks at or near the top of this hierarchy, so too are authorities outside of the traditional legal canon traditionally understood to be at or even below the bottom of the hierarchy of acceptable authority. 62

But legal authority norms are clearly in flux. “Since 1990, the Supreme Court's citation of nonlegal sources has increased dramatically, even as the number of citations has remained relatively constant . . . .”63 The trend includes state courts to a slightly lesser degree.64 As Internet legal and law-related information sources grow, the loosening of traditional notions of acceptable legal authority creates new advocacy opportunities for attorneys but also raises the bar on practice research expectations and standards.65

The shift in emphasis from substantive legal research to factual and other nonlegal research in law practice is difficult for new lawyers who did not expand their research horizons in law school beyond traditional legal research. Lawyers conduct research to orient themselves to unfamiliar areas of the law, but just as importantly to make sense of their clients' often convoluted circumstances.66 Lawyers must identify and research all potential relevant parties and decisionmakers in a dispute.67 Only when the lawyer becomes sufficiently oriented to the client's universe can problem solving begin in earnest. The client's universe includes, but is not limited to, legal concerns. Gouvin's reminder to business clinic students that “from the client's view the world does not revolve around legal issues” applies as forcefully to most clinics.68

Most clinical programs are premised on the idea that business lawyers must not only master the legal knowledge and analysis necessary for competent performance, but they must also understand the needs of their clients, the underlying business, and entrepreneurship in general. The initial client interview can be a real eye-opener for the students in this regard. Because their legal education has focused on the primacy of law, the students have to be re-educated to start their relationship with the client by learning a great deal of nonlegal information about the business, such as what it does, how it makes money, and what its short- and long-term goals are. 69

McDonnell's “Playing Beyond the Rules: A Realist and Rhetoric-Based Approach to Researching the Law and Solving Legal Problems” explains why researching the audience's needs and interests matters.70 His thesis that standard legal research is a necessary, but not a sufficient, element of case preparation warns students that legal authority is just one piece of the research that lawyers use to persuade parties and decisionmakers.71 McDonnell cites commentary suggesting it is a relatively insignificant piece.

As experienced lawyers work with clients, judges, and other lawyers, they make relatively little use of written law . . . . For every point they research, they make hundreds of applications of their shared mental model [in which they consider the audience and unwritten rules and practice]. 72

This suggests that lawyers' assessments of parties' and other potential decisionmakers' interests and needs shape their shared mental models more than their objective understanding and interpretation of the law.73 According to McDonnell, lawyers attempt to persuade the relevant audiences in a dispute with arguments in part based on law, but more significantly based on their understanding of the “audience's needs and goals.”74 Evoking legal realism, McDonnell acknowledges the continuing importance of legal research but argues that it is not sufficient for predicting what a party or decisionmaker is likely to do in a given situation.75

Judges (mostly appellate), opposing counsel, and experts or consultants can be researched on Lexis and Westlaw to see how the former have ruled on similar issues and how the latter two have fared in court.76 Directories provide biographical information and comments from practicing lawyers on individual judge's style and preferences.77 Judges, prosecutors, and other government officials do not make decisions in a vacuum; advanced researchers dig deeper to find out information about what makes these individuals tick.78 PACER, online newspapers, speeches and media statements are core investigational sources for conducting audience research. Word of mouth, public records, interactions with court clerks and other administrative personnel, and local lawyers' observations provide potentially valuable sources for conducting audience research.79

D. Authority Applications and Expectations

Sophisticated practitioner research considers how judges and opposing counsel interpret and are likely to apply authority.80 New attorneys must understand that among the potentially relevant sources in any dispute, a hierarchy of authority still exists. The hierarchy may be detected in part from general legal research principles learned in law school, but lawyers must supplement these principles by researching judges' citation practices and preferences:81

Court[s] may cite to a non-traditional source that is not necessarily a citation to an acknowledged 'authority,' in the sense that the source represents the law as promulgated by one of the branches of government or represents a persuasive secondary source authored by a legal scholar within a particular area of expertise. 82

Courts decide whether Internet citations may be used for background information or are trustworthy in various motion practice settings.83 Courts sometimes cite Internet sites for ease of information access, taking care not to endorse the web author's viewpoints.84 Courts undertaking Internet research of their own volition may run afoul of judicial boundaries,85 cite vanishing authority,86 and incur the wrath of judicial activist opponents.87 Skilled researchers seek and apply authority consistent with judicial authority requirements (whether procedurally, substantively, or idiosyncratically determined).

Delving into prior opinions may shed light on individual citation practices and preferences helping the researcher tailor arguments and briefs to a judge's authority standards and expectations.88 Discerning readers will note the judge's adherence to or departures from traditional notions of legal authority, reliance on and distinction among secondary authorities, and preferred sources.89 In turn, they will be able to better craft and refine their arguments to suit judges' authority predilections.90

The research challenges discussed in this section apply to most new lawyers. The next section identifies specific research conditions affecting public interest lawyers and their clients.