Last night I had dinner with some new friends and we were talking about the difference between being a lawyer on TV and being a lawyer in real life. One of my friends said, “Have you ever seen Boston Legal? It’s not really like that is it?” I have seen Boston Legal but I have never worked in a large law firm so although I suspect that no, it’s not really like that, I can’t say that from experience. I do know one thing though — lawyers on TV rarely spend their time researching, and if they do, they spend hours pouring over dusty, print case reporters (coffee and junk food are usually involved) then sometime around 3:00am pull a random book off the shelf and discover the answer they’ve been looking for. A colleague of mine calls that the zen method of legal research. The researching until 3:00am part may happen in real life, but the randomly finding the answer part doesn’t. I was pleased to note on Boston Legal that the firm did have a library though from what I could tell, it was used mostly for extra-marital trysts during working hours. Still, there was the hint that somebody, some time went in there to research.
So that’s the hurdle I have to overcome with my students. Lawyers on TV don’t research and research doesn’t seem all that interesting. Most of them take my class because they have to; Legal Research is a required first semester course, and since I teach a section at 9:00am on Monday, it is literally the first class many of them take in law school. But they would rather be in torts, or better yet, criminal law or constitutional law — classes that they will use in their future law practice. Starting law school with legal research seems (to them) like starting with the proverbial whimper; there’s no bang there. Except that there is. I start the class telling them why I teach legal research (i.e., why they are taking legal research). Here is what I tell them.
1. Legal research is a foundation of legal practice. The full name of my course is Lawyering Fundamentals: Legal Research. The other fundamentals in the series are Legal Analysis, Legal Writing and Theory & Practice. Law school is long and it’s hard and there is a lot of reading, but when you graduate, you won’t know everything there is to know about the law. There is a lot more. And law is dynamic; it develops as society changes and law has to deal with new technologies and situations nobody ever thought of before (more about that later). Even if you do learn everything there is to know in law school, 5 or 10 years down the road, you won’t know everything anymore and you’re going to have to figure it out. Plus, it’s not enough to know the law– you also have to know how to be a lawyer. In real life, lawyers research and students need to learn the sources and methods that are specific to law.
2. Legal resources are unique. What is a Corpus Juris Secundum anyway and what do you do with it? Even if you have other masters degrees or even PhDs and have spent years researching, you have probably not used legal resources unless you have worked in a law firm. Just as I don’t know the research methods my sister uses as a biologist, she doesn’t know what I do when I use when I need to figure out whether a new statute is constitutional or how a trafficking victim can apply for a U.S. visa. If you google a legal issue you will find something, but is it what you are looking for? Is it primary authority or secondary? Is it mandatory authority or persuasive? Is the case still good law? Why does any of that matter as long as it tells me what the law is?
3. Being able to find the law empowers you to solve problems. Imagine two neighbors are fighting over a purple polka-dot fence; one thinks it’s a work of art, the other thinks it’s a nuisance. They’re so mad they are just about ready to shoot at each other. Imagine somebody working on their taxes asks you if all the food he bought for puppies he fostered for the animal shelter counts as a charitable donation. Imagine a local business wants to patent a new invention. Imagine a victim of human trafficking really does walk in to your office. Right now, you probably do not know the laws that apply to these problems. In fact, the day you encounter these problems you may not know the laws that apply to them. You will, however, know how to do the research to find those laws and figure out what you, as a lawyer, need to do next.
4. Legal research is intellectually challenging and interesting. Legal research is more than looking up a few facts, or even the wording of a statute or the court’s holding in a landmark case. Legal research is finding that holding, then questioning it in light of other holding you find, or figuring out how it applies to a problem you are trying to solve or the issue you have in front of you. Finding the facts and statutes and cases is important, but that is information gathering. Research is applying intellectual energy to the information you find and following the nuances. It’s easy enough to find the First Amendment and read that “Congress shall make no laws . . . abridging the freedom of speech” but digging deeper and figuring out how that applies to a state law banning picketing at funerals is more challenging. A good researcher finds a piece of information, asks “what if…,” goes looking for more information, then figures out how it all fits together — or doesn’t.
5. Researchers change law. This is where we come back to law being dynamic. Society changes; values change; people discover and learn new things and do new things. Law has to apply to all of this and sometimes, it has to change to keep up. At one time, segregation was legal in the United States. It was lawyers who had spent many, many hours researching, asking questions, following the details, and thinking about legal precedents in new ways — and judges who did the same — who are responsible for changing that law. The best 3:00am aha moments are not finding “the” case, they are realizing that if you think about all the cases you found, they lead you to a new argument for changing the law. Research is creative in the most fundamental sense of creativity — you are making something new out of what was there before.
Having said all that, there are days we are going to spend class time learning how to use a descriptive word index and where you put the comma (which isn’t italicized) in the citation to a case. I can’t claim those particular tasks are interesting, but as soon as you apply them, that’s when you start researching and that’s when it gets really interesting.