Legal Research Thaumaturgy

I’d reviewed “Bob’s Bible” the night before class so I was ready when Professor Robert Wright asked the question.  A question he’d asked the same way at the same point in law school so often it had been recorded by previous students and turned into a course outline.  He actually asked the person next to me first, who flubbed.  “Mr. Whelan, what is thaumaturgy?”

Magic.

I’ve written here before about how the legal system’s use of special language obscures, for both lawyers and those who haven’t been called to the bar, meaning.  You can still find courts using thaumaturgy in cases not involving Dungeons and Dragons.  I’m not sure why, although perhaps those judges use silver dollar words all the time, instead of nickel ones.

I had a voice mail on Friday from a senior citizen in western Ontario.  Not a lawyer or paralegal, just someone who was in the middle of a legal problem and needed some steering.  She’d started her research the way so many people did, with Google.

And found me.

It was pretty clear that she was asking for case law – not which cases to use, just to be able to access the information on her own.  The easy answer in most common law countries these days is the national or regional legal information institute that are part of the Free Access to Law Movement.  I suggested CanLII.

But she’d already been there and not seen the cases.  In particular, she wanted the cases that connected her to the statute that she was researching, Trespass to Property Act.  So I told her to pull up CanLII – telling her what to type in to get directly to the site – and I’d explain how they’re linked together.

Any librarian who has ever helped someone who is ALSO using a device knows that a brief interlude of chatter now ensues.  She repeated back what I said as she typed, and as the page loaded, she told me about how she’d navigated the civil rules – and how the lawyer representing the other party hadn’t – and so on.

When I was able to gently steer her back to her research, she described the page that had loaded.  It was a search result page.  She’d typed the URL into the most obvious box and hit ENTER.  She started clicking on links and within a few seconds had arrived at a page on an Alberta government web site that she knew she didn’t want, and so was confused.

We started over, with me directing her to Google and both of us typing in the same search and getting the same results.  We then both arrived at CanLII’s Ontario content and I explained how to navigate to the statute she was following.

She was delighted to see the statute.  But, as she gently reminded me, that’s not what she needed.  She wanted the case law.

We used to call it Shepardizing in the U.S. and I expect lawyers still do, even though that is now part of the LexisNexis research sytem.  When I came to Canada, I was introduced to the term note-up.  They’re all names for the tool known as a citator.  CanLII’s is also sometimes referred to as Reflex, after the tool that generates the citations, like LexisNexis’s Shepards and Westlaw’s Keycite.

When you know something, you don’t really think about what you know.  She’d seen the same page I had – and had apparently even used CanLII before – but this key piece of information was the hurdle over which she couldn’t climb.  I’m not sure calling it citator would have helped; calling it note-up was as useful as calling it thaumaturgy.

She was delighted when I explained how, by clicking on the Note-up tab and clicking the search button, she could return matching cases and narrow the terms.  After describing her recent Mediterranean holiday, she shooed me off the phone and went on with her research to prepare for court in March.  She was completely comfortable with the information, but the tool’s labels inhibited her ability to get to it.

Our interfaces sometimes make our work look like magic, because suddenly something that wasn’t there, is.  The problem is that one-to-one law library support doesn’t scale.  Free legal research tools are a godsend for the legal profession, who now have choice on how to spend their overhead when it comes to legal research.  But it may be worth revisiting the arcana we use to describe our tools to see if we can make changes that increase the ability of everyone to use the same tools.

 

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