Law Libraries and Legal Malpractice

Lawyers do not need law libraries to be competent.  The reality of modern legal practice is that legal professionals need access to legal information and its location is irrelevant.  Legal publishers have embraced this and, over the last decade, have devoted their product development to lawyer work flow.  This workflow concept creates a private pipeline between the publisher content and the researcher.  Think LexisNexis’ Microsoft Office add-in or Thomson Reuters ProView e-reader which assume a single user accessing information from within her own environment.  Note that both tools are unusable in public law libraries because of the one-to-one researcher-to-publisher relationship that libraries can’t enable.

Most North American lawyers practice in a solo or small firm practice and there is a very limited distribution of publicly-accessible law libraries.  Where county or courthouse law libraries are enabled by legislation, they are typically run by a mixture of local attorneys and judges.  What was originally a perq for the local bar – a subscription or membership law library requiring member dues – has in most jurisdictions in North America morphed into an access to justice resource.

A map of North America showing where publicly accessible courthouse law libraries are enabled or available. Where I wasn't sure, I did not color in the state.
A map of North America showing where publicly accessible courthouse law libraries are enabled or available. Where I wasn’t sure, I did not color in the state.

This shift is partly due to need.  The need of the public – and the North American system of justice – to get better access to and assistance with legal information.  It also reflects the need of the law libraries to justify their continued existence and, especially, funding as lawyers shift their legal research to electronic materials accessible from their offices.

Lawyers Don’t Know How to Research

Public and courthouse law libraries have some special challenges.  Our lawyer and paralegal researchers are almost universally trained in legal research before coming to the library.  Researchers may need help orienting themselves to the collection and resources but can, for the most part, perform their own research.  There is significant disagreement amongst law librarians about whether this is good or efficient legal research, but nevertheless, it’s often done independently.

Morris Cohen suggested in a 1969 paper that only law review students seemed to get proper grounding in legal research skills.  Everyone else was contributing to the “grievous condition of the art of legal research.”  Cohen’s paper is worth a read because it has data about how lawyers do research, based on his own survey in Philadelphia and data from the Missouri Bar.  It was clear even then that there was a clash between the accepted steps of legal research outlined in the paper and what lawyers actually used.  Cohen noted the reliance the bar had on (a) each other and (b) previous work.

This much hasn’t changed over time.  When I made a general flow chart of the legal research process as it is generally outlined today to compare to the costs involved, I thought colleagues, prior work, and referrals were still a big part.  I hadn’t read Cohen’s article then but it certainly makes sense.  Law librarians tend to focus on just one stream – the “no” stream – as the preferred research method, but that’s only part of the picture.

A flow chart of the legal research process as pictured by David Whelan and the relative costs of each segment
The library costs in collecting for legal research.

Another element that hasn’t changed is the recurring drumbeat that “(new) lawyers don’t know how to do legal research”.  If you start with Cohen and come forward, you could probably find some law librarians at any given time during that 50 year period who felt lawyers were not ready to research.  Librarians and lawyers who suggest that it’s Google’s fault are just finger-pointing at the latest bugaboo.

Two other librarians took a more recent look at legal research skills from the perspective of private law firms: were the incoming lawyers able to do competent legal research?  No.  If you read Howland and Lewis’ 1990 paper, you’ll see the same complaints voiced in the late 1980s and early 1990s as are still heard today.  Their take was on whether law schools were preparing their students for the research they’d need to do in practice.

If you ask the librarians, lawyers cannot do legal research.  It’s not clear what lawyers think about their own research skills.  But it’s hard to believe that this is a universal problem that has lasted for a half-century.  Perhaps law librarians have the wrong end of the stick.  Perhaps we are measuring the wrong thing and are focusing on the fact that we can’t find it.

Who Knows if Lawyers Can Research?

It’s commonplace to complain about lawyer research.  Librarians partly justify their existence – unless they’re in an entirely public-oriented setting – to fix this problem.  How big a problem is it?  How often are lawyers disciplined for failing to perform proper legal research?  This is hard to determine but if you look at data on lawyer malpractice claims, it wouldn’t seem to be as as pervasive an issue.  It is not hard to see better legal research being a factor in some of those cases.  Even if you put the best face on it, though, the number of claims that might be avoided with better legal research is pretty small in the face of how many lawyers are practicing.  Are all those other lawyers just skating by with their substandard legal research?

What do we know:

  1. Most lawyers work in environments without legal research support in-house and are unlikely to have regular, convenient access to a staffed law library (lawyers tended to be in firms 10+ when responding to the ABA’s 2013 Legal Technology Survey about whether they asked a firm librarian for help) ;
  2. Most lawyers have access through online or workflow tools to legal research from within their office, although they may also be relying on colleagues and prior work product;
  3. The thousands of legal malpractice claims measure some problems with lawyers knowing the appropriate legal information but it’s a drop in the bucket compared to the overall North American legal profession;
  4. Based on Cohen’s 1969 article, lawyers have been pretty much doing legal research the same way over the last 50 years, a method that does not match the process often touted by law librarians as the only one.

Two things occur to me:

  1. If law librarians are right, then we’ve done a very poor job in the last half century and spent millions of dollars without finding a repeatable method of teaching good legal research;
  2. If law librarians are wrong, then suggesting new lawyers are unprepared to perform legal research has more to do with our having a role than it does with reality.

The Law Library’s Role and Value

Law firm librarians are pivoting to other roles – knowledge management, competitive intelligence, other research subject matter – and the financial realities of law firms will measure their value.  Similarly, academic law librarians exist in a world where they have a variety of roles and new law students still need training.  It can still be hard to measure law library value in an academic environment but the captured audience makes it less of an issue.

What about public or membership law libraries?  There’s a real issue here.  It’s not clear to me that the value provided justifies the funding allocated.  Governments and other organizations are spending millions each year for libraries that purport to ensure lawyer competence or access to justice and there are few metrics to show the return on that money.  These libraries provide the most diverse set of roles, however.  Like private law firm librarians, they are often the source of help for legal professionals who are stumped.  Like academics, courthouse and membership libraries are often the local print archive, keeping books around that others have discarded, enabling the local bar to reduce their overhead by relying on someone else’s books.  In addition, many of these libraries are serving the public.   Where lawyers already understand the systems underpinning the justice system, the public may not have a firm grasp of which court does what.

It is difficult to show a value relationship between legal research assistance and a legal outcome in any environment.  Law libraries that rely on grant or government funding are definitely at risk because of that difficulty.  There are well-discussed paths forward and, for most of us, it involves access to justice and public legal research support and a slimmed down set of information and services.  When we focus on vague roles based on anecdotes – like the continuing failure of the profession to be able to do “correct” legal research – rather than the value that we can actually provide, we risk straining the credulity of our funders and our access to their resources.