In a singeing letter on his retirement, a legal research and writing professor outlined recently some thoughts on law school academia. One thing that struck me was his argument that it “conflates experience with intelligence.” It aligns with teaching to think like a lawyer – to think like people who have been lawyers. And it set me thinking, again, about the endless loop of why there are less capable legal researchers. Experienced researchers are making the assessment, but not necessarily enabling more experience.
The full section from the letter is:
Old hands don’t speak in-speak because they’re smart; they speak in-speak because they’re old hands. Newbies aren’t confounded by in-speak because they’re stupid; they’re confounded by in-speak because they’re newbies. Traditional law school pedagogy willfully conflates experience with intelligence.
When some law librarians or lawyers say that [new | younger] lawyers can’t do legal research [to expectations], they’re surely not discussing intelligence. They’re highlighting that people who have been through law school, and a dedicated legal research course, have less experience.
To be clear, I think people in law school (and many others) can understand the mechanics of legal research without too much difficulty. Experience comes from doing – like practicing an instrument, or cooking regularly, or flying a kite – and requires more than instruction.
Legal Research Instruction on Repeat
I’m not sure we always approach solving this legal research experience issue in the right way. If we know the lower capacity is due to fewer experiences, can we provide more? For what it’s worth, I’m not really talking about experiential learning within the confines of the law degree – I think whatever this is has to happen after graduation.
Law students, and new lawyers, know where to find help, have basic information to get started, but lack opportunities to research.
“Unless they’re working on a law review article”. Or, in practice, perhaps, working on legal matters that require regular research. Or require a variety of types of research – deep and broad – that build that experience.
If it is a question of experience, is the best approach to then set repeated opportunities to re-experience first year legal research? Re-teach, through bootcamps and other short exposures, how to use secondary resources and progress to primary materials? Are we just repeating information, without providing experience?
I’m not knocking the efforts or intentions behind refresher research bootcamps and efforts. A 2018 law review article discusses how an Australian law faculty focused on a bootcamp to teach substantive-law-free legal research skills, including a session calendar.
What was needed was an opportunity for the students to learn some of the foundational knowledge and skills before ‘diving into’ the unfamiliar territory of tort law.
But it makes the point I’m driving towards: we’re good at focusing on teaching legal research without substantive context. At what point are we repeating the how to do legal research rather than creating post-JD graduation opportunities for experience. Intensive legal research sessions for summer law students and new lawyers are common. The kickstart can refresh memories, since everyone has already learned the basic information.
Think of how you’d return to something you hadn’t done in awhile. I recently started playing the french horn again after 30 years. But to play a horn, you need an embouchure. In the intervening years I’d played the Highland and small pipes, so my lips weren’t entirely out of shape but nowhere near ready for the horn.
I played scales and music that was in my limited range, which expanded the more I pushed the edges. I knew the basics – pucker and blow, and wiggle the keys. But it was repeated use of familiar music and learning new, particularly at weekly band rehearsals, that I started to get the experience I needed to improve. Better breathing control, optimal key choice in twiddly bits, listening to other players across the band with whom I’m supposed to be in unison.
So how do we create that ongoing, repeated-over-a-long-period-of-time opportunity to create experience?
There may be better approaches if – to reach the end goal of better researchers – we need to focus on experiences and not on re-teaching the process. This might look like:
- a law library offering weekly or monthly legal research competitions, where lawyers download, complete, and upload their results. Competition may not be the right word – challenge might be closer. Does this cause a negative first reaction? But people do daily crosswords or sudoku games, so what makes them willing to spend the energy to build that knowledge and skill but not legal research?
- participants would get recognition for participation. It might be law firms – contacted in advance – would recognize research time as non-billable professional development hours, or contribute research scenarios, or other support (like feedback). There are ways to incentivize – Leaderboards? Gamification? (“BINGO!”) Prizes, like the legal publishers shill? What recognition would make the activity sticky? A local bar association award for most activities completed (not “won” or best scores, since we’re talking experience not winning).
- the research process would be critiqued, so the participant gets feedback about choices. With a crossword, even if you fill in all the boxes, you may have some wrong. How do you learn which ones aren’t right? Some sort of indicator showing what worked and what needs work.
- And I’d try to add a paid component – participants pay a nominal fee to participate, even if all or part of it is refunded on completion – to help to underscore the value.
And of course, we’d have to decide what experience is necessary. It’s not really about getting answers. The experience is knowing how to do the research. So perhaps the focus should be on how well participants develop process – based on, say, a research log that they keep – to find answers. And could we create a resource from the resulting research logs to show that there’s more than one way to get to an answer?
It’d be a bit like a CALI legal research lesson. But not entirely, since the activity would not live within an application or learning system. It would lack the structure of an online course because participants would approach it using different tools and from different angles.
An academic law library – where the legal research team is already concocting fact patterns for law students and may have processes established for this sort of workflow – could be well-positioned to do this. It could act as a marketing tool and a way to keep links to alumni strong, especially if the law school is offering alumni remote access to resources.
I’m picturing something a bit like this Google Power Searching course, except with feedback. It’s opt-in, it uses resources that all participants can access.
Feedback is a hard one, though. If we want better researchers, it is a harder time investment than an annual bootcamp. We know that CLE legal research seminars and week-long refresher courses don’t scale – or they would. It is a reasonable commitment for a law librarian to do a one hour course, or even participate in a week long event. But monthly for years?
Perhaps more challenging, would it have to be a single organization? Could a couple of law libraries partner to create a program – rather than creating multiple, geographically distinct copies of each other – which could be available to any lawyer who wanted to participate?
Could it be a mentoring possibility, with lawyers providing feedback? A hiring possibility, with an extra law librarian added to cover the project?
The incentive is to be better at something. But really it will come down to a lawyer feeling like there is something that needs to improve, or a law firm saying “Thou shalt improve your command of the Second Restatement.” Every lawyer who has in the past bemoaned another person’s legal research skills can champion a program.
And it may be that most lawyers – and their firms – don’t see more legal research experience as a benefit. That their work doesn’t require that much legal research, that they rely more heavily on firms and their own peers than they do on online databases and print annotations.
If experience is the issue though – not intelligence, not having been exposed to the basic ideas, but the repeated application of them – then we may not yet have tapped the best way to get inexperienced legal researchers the experience they need.