John K. Hanft is the Co-Director of the Witkin Legal Institute at West. He is the author of Legal Research in California, published by West, and the co-author of Wills, Trusts, and Estates for Legal Assistants, published by Aspen. The following remarks were delivered May 16th, 1998, at a symposium sponsored by the Bernard E. Witkin State Law Library of California, entitled "Shaping the Future of Legal Information." These remarks also appear in Legal Reference Services Quarterly, Volume 17 #3, pp. 77 et seq. (1999).
I would like to discuss some of the challenges I see arising from electronic research, to contrast two views of legal research, and to offer suggestions for a systematic and efficient legal research methodology.
CHALLENGES ARISING FROM ELECTRONIC RESEARCH
In my view, electronic research, particularly internet research, presents five significant challenges for legal researchers.
- The first is the abundance of data. There is no surprise there. We have all seen horrifying statistics about the information explosion, the vast size and number of electronic databases, and the exponential number of websites. As if that were not bad enough, electronic data, especially on the internet, is much more disorganized than legal researchers are accustomed to. It does not fit our established patterns, and a consistent way to cite it has not yet been developed.
- A second challenge is the accessibility of data. Not only is there vastly more information, but it is easier to access. As a result, the scope of a typical research day is changing. We no longer need merely cases and statutes, but regulations, ordinances, factual information, statistics, public records, international documents, and news. Paradoxically, as these materials become more accessible, our need for them grows. What might have been beneath our notice five years ago (because it was too hard to find) may be required today to avoid malpractice. Here is a simple example in some circumstances, mailing notice to the last known address may be sufficient to show due diligence in locating an individual. Soon, I expect, good practice, and perhaps court rule, will require us to do an internet search in a people-finder database.
- A third challenge is the validity of data. In a print world, we had the reputation of the author, or at least the longevity of the publisher, and our own experience with the traditional print sources as a guide. And we could depend on the integrity of the published page. We have all seen how volatile legal publishing can be. Electronically, most of us are unable to figure out who our e-mail is really from, let alone verify that the data on which we rely has not been altered or corrupted. I, for one, am not very comfortable citing an electronic document when, the next time I look, the document may have been revised or the site moved.
- A fourth challenge is the permanence of data. In a print world, our books and pocket parts were relatively durable. They acted as a repository of information. How do we maintain that durability in the electronic environment? Today, for example, we have the capacity to embed active URLs in our research memoranda, pleadings, contracts, and other documents. This could have astounding consequences for how we conduct research and how we practice law. Imagine, for example, a construction contract linked to dynamic building specifications, an appeal brief linked to an electronic record, or a transcript linked to digitized exhibits. This is tremendously exciting. But I worry that, when we execute our hypertext links, there will be no there there. Who will maintain the record, and for how long? With electronic data constantly changing, will we have to create our own electronic archive of every research session in order to preserve our results?
- A final challenge is the loss of peripheral vision. With piles of papers on our desks and books open on our lap, at least we had a feel for where we were. A computer screen is just not the same. Even with multiple windows and sophisticated applications, our focus is narrower. More than ever, we need help keeping our place.
TWO VIEWS OF LEGAL RESEARCH
Faced with these challenges, I would like to contrast two views of legal research, a traditional view and a modern view – what I like to call the sink or swim theory of research and the well-stocked lifeboat theory of research.
1. SINK OR SWIM
The traditional view, the sink or swim theory, grew up in England at a time when the number of practitioners was relatively small, law was within the particular knowledge of the Inns of Court, and, without too much exaggeration, everything you needed to know could be found in your own experience or between the covers of Blackstone. In this country, the sink or swim theory is still very much alive, in large measure because law schools, and commercial publications and databases, accept and teach the traditional view. As researchers we are taught to collect, sift, and analyze the data by ourselves, in our own way. We are on our own, to sink or swim.
This view generally relies on primary law as a research starting place. Typically, we use digests and annotated codes to find relevant cases and statutes and references to treatises, law review articles, and practice works. We find classification numbers for the issues being researched, and then use them to find all cases dealing with these issues. Unfortunately, this method makes huge demands on our time and abilities:
The references in the codes, digests, or other materials may or may not alert us to important collateral issues. So, unless we already have a strong knowledge of the subject matter, our research may not be sufficiently comprehensive.
We must carefully check all the cases and other authorities we find and might want to use, because the digests and annotations themselves do not generally provide evaluation or analysis of the authorities.
In many cases, we may decide that a different research approach would be better suited for a particular situation and we forgo using these unwieldy tools. Thus, the tools are not promoting a consistent and disciplined approach to research.
In electronic form, the hallmark of the sink or swim method is full-text searching. Using codes, cases, and digests, we can generate many more useful leads in a much shorter time. But we then need to sift through much more unrefined material. In addition, devising effective search terms to do full-text searches on these huge databases requires us to assume the dual editorial roles of headnote classifier and indexer, roles for which many of us are ill-equipped.
For most of us, the power of full-text searching is illusory. It can be very effective, of course, in searching outlines, tables, and indexes, or to find material that authors, editors, and commentators have overlooked. But as an exclusive or predominant research tool, it can be a colossal waste of time and can produce unreliable results. We easily get lost or sidetracked. We lose sight of the conceptual overview of the subject. We accumulate unnecessary amounts of disorganized and unreliable material that has to be checked and rechecked. We overlook important areas we should have included in our research.
In summary, the volume and complexity of these primary tools tend to make every research project an expedition on uncharted seas. Too often, we end up swimming in circles.
2. THE WELL-STOCKED LIFEBOAT
The modern view, the well-stocked lifeboat theory, relies principally on secondary law as a research starting place. It is an analytic view that begins with treatises, commentary, law review articles, and practice works. Typically, the researcher begins with a table of contents or topical outline.
The modern view acknowledges that researchers need the help of experts law writers, publishers, librarians as research partners, to analyze cases, to draft sample forms, to summarize statutes, and to explain how concepts fit together. Beginning our research with highly-respected treatises and practice works has obvious advantages:
- These publications are generally written by professional writers and legal experts, and an editorial staff checks their accuracy
- They provide expert organization and analysis and cite carefully-selected and reliable authorities
- They usually have detailed conceptual or transactional outlines, which give an immediate overview of the subject
- They usually include high-quality indexes and tables, which provide quick access
- They are powerful and efficient gateways to primary law and other legal resources
- Like the navigational charts and directional instruments in that well-stocked lifeboat, good secondary sources help guide us safely to our destination.
In electronic terms, the modern view relies not so much on full text searching, as focused hypertext links. A conceptual framework takes us step by step to our research goal, linking one well-chosen authority to another.
Of course, as researchers, we use elements of both the traditional and the modern view. But our method is often chaotic. We have a map but not an itinerary. The challenges we face in the electronic environment the growing abundance and accessibility of data, the problems with the validity and permanence of data, and the loss of peripheral vision make a systematic approach to research even more important. In my view, the sink or swim method is just too haphazard. To get the job done right, researchers must be taught how to rely on experts.
Even so, the well-stocked lifeboat has problems to watch our for:
- Scope. Most treatises and practice works are limited in scope to a single subject or practice area, and do not provide integrated coverage of related issues in other areas. Thus, we may need to use several treatises and practice works, with different styles and features, and content that is not integrated or coordinated. In addition, we may need to use digests, codes, and other resources to fill in the gaps. Consequently, this approach does not always promote a consistent and disciplined research system.
- Depth. Practice works are intended to provide procedural and transactional guidance in specific practice areas. They generally do not cite extensive authority for the principles they discuss. Usually, for each point they cite only the relevant statute or rule, or one or two leading cases. This makes them limited as research tools when we need to find collateral authorities, such as law review articles, Restatements, Uniform Laws, and other reference works.
- Separated Research Functions. Increasingly, there is discontinuity between the producers of research and its users. If a librarian, an associate, a paralegal, or a contract attorney is doing the basic research, and someone else is writing the brief or arguing the motion, that end-user will have to verify the quality of the research. Using a systematic approach to research helps provide this critical quality control.
A SYSTEMATIC APPROACH TO RESEARCH
What are the components of a systematic approach? In selecting a secondary source, in print or electronically, we should look for high-quality publications that do the following things:
- Provide a carefully structured, hierarchical organization
- Include detailed topical outlines that give a comprehensive overview of the subject
- Present concise, comprehensive, expert analysis
- Use extensive cross-references, indexes, and tables to provide efficient access to the material
- Provide pinpointed citations to the best primary and secondary authorities
- Lead us to the next step in our research by describing our choices, but not leading us astray with marginal and irrelevant material
- In California, the Witkin treatises are ideal for this purpose. In specialized areas, like tax, a looseleaf service may provide these features. On the web, more and more sites take researchers step-by-step.
For all these reasons, the key to effective electronic research is this:
- Rely on high-quality secondary sources that use a conceptual arrangement and integrated coverage
- Develop a systematic approach that allows you to plan, coordinate, and verify your research
- Use your approach and chosen sources consistently