explodedlibrary bunker

ALLA 2008: Natalie Wieland, The power and the passion: teaching legal research

What I learned from this session:

Natalie Wieland’s paper was full of practical pointers, not only about legal research training but about legal research itself. Most importantly, legal research is a skill which must be continually learned and relearned - this applies to everyone: law students, graduates, partners and librarians.

I liked her attitude about teaching legal research, not apologetic at all, but in your face. If new graduates knew how important these skills were, they would be banging on our doors for training. But generally this isn’t happening, so we need to be more proactive about motivating them to want to learn these skills. This may involve doing things which aren’t so “nice”, like exploiting their anxieties and competitiveness and even rubbing their faces in their own ignorance.

My disclaimer: This is not a verbatim record of these sessions. I have attempted to be accurate, but I am not a transcriber. These are just my recollections aided by very rough contemporaneous notes. I welcome comments clarifying or expanding on or correcting these notes.

The power and the passion: teaching legal research
Natalie Wieland, Bliss Consulting

Natalie Wieland has been working as a consultant, specialising in providing electronic legal research training for law firms. She has recently been recruited to the other side of the fence and is now helping Melbourne University to improve the research quality of their graduates.

In her new position, she has started “Get ready for work” classes for final year students. She initially planned for 15 people attending this voluntary class, but was surprised to find that 115 students have expressed interest. It shows that law students can become interested in these courses if given the right motivation and marketing.

Natalie has been able to reach these students by targeting their ambition and anxiety. She has drawn attention to their failings as researchers. In law school, poor research only has limited consequences. Working in a law firm, poor research will really hurt you.

Legal research is not something which you can learn once in a course and retain forever. The key thing about legal research is that it is a skill that must be developed and practiced and relearned over time.

The learning process never stops, not even for people who do it everyday like reference librarians – we may develop sloppy habits or fail to take into account new research tools.

With law students and graduates in firms, we should be training them with a view to giving them a good grounding in research so that they will be able to relearn these skills. Library training should be well regarded as the key to learning an essential lawyering skill.

Natalie has assisted two main types of people in law firms.
Graduates – we need to accept that when it comes to legal research, they will never hit the ground running.
Senior associates and partners – who may be uncomfortable with online research methods and delegate it to more junior staff. These people may not like research and avoid it, but they can be motivated to improve their skills by two magic words, “risk management”. They may be able to delegate much of their research work, but they cannot escape the responsibility of overseeing the research that is done on their behalf. After all, they are the ones who will ultimately be accountable if this research is of poor quality or took too long or cost too much.

Natalie has noticed that generally the junior lawyers have good computer skills but poor research skills. The senior lawyers usually understand the research process, but they might be really bad with computers. It’s best to train these two groups separately.

Research is hard. It can be different every single time. It really is a skill which evolves and grows. Research expertise will also diminish if the skill is not used regularly enough. Learning a skill is pointless if there's no opportunity to practice these skills.

There are some people who will never willingly come to training, but will call us if they need help. Sometimes we won’t be around when they need help. Can we design our research guides and cheat sheets so they can work if there’s no librarian around to translate them?

Most of the time law students and new graduates can find something “kinda useful” but they rarely know what they’re doing or how they reached what they found. Natalie thinks that 10% of research grades should be based on a research trail, so people can become conscious of the process they’re using.

They just seem to arrive in places, not really understanding what resources they’re using. Could it be that when these different database are just different links on the intranet, they seem to become interchangeable?

Library training shouldn’t be viewed as just library training. It doesn’t matter if librarians aren’t lawyers. Our familiarity with research processes and resources is valuable knowledge which we have to offer.

There are some artificial things about legal education which can cause a graduate all sort of problems when they are start working in a firm.

• They spend a lot of time using case books which creates a spoon-fed mentality. In this mentality, the legislation in front of you is static and is never repealed or amended. It’s never necessary to do additional research such as finding extrinsic materials for statutory interpretation.
• Everything is pigeon-holed into subjects, and students never need to develop the generalist skill of identifying the correct area of law. After all, clients don’t walk in the door saying, “Hi, can you help me with this Equity problem?”
• Assessment is often exam-based, where research skills aren’t taken into account at all.

When a new graduate starts working in a firm, they may find that the work they are given is random, and could be about anything. It also needs to be done very quickly. The other difference is that in law school, students have access to a huge range of expensive research resources, but are usually kept in the dark about how much these can cost. In the firm they will have access to fewer resources and they will need to think about the cost of their research. These differences can make graduates in firms very anxious.

When it comes statutory research, we can’t assume that a graduate knows anything. They can be completely stumped by point in time research, especially if it involves print resources.

Some key concepts in legal research

1. Know the resources

Thanks to Google and Wikipedia, people have no idea of what they’re doing and so seek out Google-like interfaces in other resources. They like the big general searching across all of Law Book Co Online or LexisNexisAU, because they have no idea about which part of these huge databases is relevant to their research.

They don’t understand why they can’t link to the authorised CLR version of a decision.

Imagine if we went to a doctor with a medical problem, and the doctor said, “Hmm, I’m not really sure but Google will have the answer.” We probably wouldn’t be very impressed with that doctor. Let’s try not to emulate that approach in our legal research.

2. Research methodology

It’s not just about showing students how to use boolean operators, first we need to teach the process. Things like searching from broad to narrow (755 cases is not a good result!), being aware of synonyms. Finding extrinsic materials is all process based.

Another part of this is not falling into traps such as over-relying on the symbols used in the citation databases. Sometimes the cases flagged with negative treatment might be exactly what you need.

3. Asking the right questions

• New graduates should get used to asking these questions when they receive a research task:
• When do you need this by?
• How much time should I spend on this?
• What’s the relevant jurisdiction?
• Are you expecting results? Sometimes people just want to confirm that something isn’t there.
• Should I pay for any relevant resources?

If they have any difficulties, they should contact the library - sooner rather than later.

4. Being accountable for your time and expenses

This comes down to knowing when to stop.

Marketing legal research training

Natalie concluded by mentioning more ways of motivating people to be interested in legal research training.

Put the resources into context. “Are you interested in finding recent decisions and legislation in property law?” is much more effective than a course called “Lexis training.” Adults will not learn unless they want to, this contextual information helps people decide if they want to learn or not.

Demonstrate how little they know about the topic. Once Natalie asked students to find a 1982 amending act which was not online.

Tap into their anxieties. “What if it’s not on Google or Austlii?” For senior people, “Do you know how your staff are researching?”

Advertise your training. There are lots of other things going on and we need to compete with those.

Don’t forget the 3 yawn rule. If there are 3 yawns, you’ve lost them, and it’s time to change your approach.

www.cpdinteractive.com.au

www.blissconsulting.com.au

ALLA 2008: Opening address by Chief Justice Robert French

What I learned from this session:

It was an eye opener to have the chief judge of the High Court of Australia speak about the role of law librarians in our legal system and expound on what an important and indeed powerful role this is. It was also an interesting speech, punctuated with amusing anecdotes and pop culture references.

My disclaimer: This is not a verbatim record of these sessions. I have attempted to be accurate, but I am not a transcriber. These are just my recollections aided by very rough contemporaneous notes. I welcome comments clarifying or expanding on or correcting these notes

1. Introduction

He began by saying that libraries are places of power and danger. There is a stereotype that librarians are benign and helpful, but marginal to society. He referred to the recent Dr Who episodes, Silence in the Library and Forest of the Dead, where the largest library in the world is a place of horror.

2. Information literacy

The Chief Justice then spoke about information literacy, typically defined as the capacity to recognise when information is needed, and the ability to locate, evaluate and use that information effectively. [I’m wondering if the he was referring to this definition of information literacy.]

He went on to say that information literacy is very important in both advocacy and judgeship.

A key skill is knowing how to ask the right questions - something very important, whether one is using a database or asking a librarian. The answer to the meaning of life, the universe and everything as 42 is the best example of what can happen when we get the question wrong.

He returned to the theme of libraries as places of power. We should be aware that books and writing have always been linked with power. LIbraries are not simply storehouses of books, they are the means of organising knowledge. This includes controlling knowledge and limiting access to it.

3. The development of law libraries

Libraries have historical links to law and religion. Consider the role of the Babylonian Temple Library in housing the Code of Hammurabi. During the Roman Empire, private libraries were important resources for scholars. Before his assassination, Julius Caesar had planned the first public library.

In the middle ages, the idea of libraries continued amongst monastic communities. It was here that the idea of borrowing books was introduced - provided security was given.

During the reign of Queen Elizabeth I, the Bodleian Library and the Parker Library at Corpus Christi College were founded. The Inns of Court also had their own libraries for members. In 2006, Chief Justice French had been an Inns of Court Fellow, and he was struck by the depth of history in the libraries.

In the United States, law libraries started with private collections of English legal texts, especially Blackstone.

The modern law library is found in the academy, courts and amongst practitioners. In Australia, they house an ever-changing collection of Australian statutes and cases and looseleaf services, journals and monographs, as well as relevant materials from other countries.

Even the most adept legal researcher will need help from a competent law librarian.
Furthermore, law librarians can assist legal practitioners avoid information overload and information paralysis.

4. How law libraries are used in the judicial process

The Chief Justice then spoke about judging. Its core business is the quelling of controversies and it uses a syllogistic mode of decision making. Find the facts, determine the law, apply the law to the facts.

a) Fact finding

The process of fact finding can be complicated, the ground can shift, which results in the positions and areas of conflict shifting.

In commercial litigation, fact finding can involve considering thousands of emails. Managing the discovery process has become a major challenge to the legal profession and the courts. In one recent case, discovery alone cost millions.

Because electronic documents are involved, it may be possible to develop sophisticated search engines to find the relevant documents, but is there a role for library science to help with this?

Another component of fact-finding is reviewing scientific literature to rule on expert evidence. In patent law, one of the standards used to determine whether something is inventive is the “skilled but imaginative person” - would the invention have been obvious to him or her?
Judges need to review prior scientific literature when fact-finding in advanced technology and biotechnology.

When deciding questions of professional negligence, it is also necessary to consider knowledge relevant to the field.

b) Determining the law

Judges need to consider both statute and the common law. Common law is akin to the process of genetic evolution. It’s been described as the sluggish march of a glacier. In most cases the common law is known, and there isn’t a need for further research.

But at the appellate level, the common law may not be known for that class of case, or there may be novel or disputed circumstances. In these instances, judges need to look further, at the law of countries and textbooks and law journals. This involves accessing a vast body of legal information.

Other challenges arise when interpreting statutes or regulations. The meaning of language is not something as easily solved as an algebra equation. There are many things to consider when interpreting statutes: the ordinary meaning of the words, statutory definitions, and extrinsic materials. Sometimes the words of the statue may be the same as words in previous statutes which have a body of case law interpreting them.

The level of information literacy needed to do this work effectively can be quite high under these circumstances.

The Chief Justice then commented that the skill of all the actors involved in the use of the law library is important, whether it be lawyer or judge or librarian. He said that a law librarian with knowledge of both the law and library research was particularly valuable.

He then described one of the immigration cases which he had heard on the Federal Court. [I think that the relevant case is SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189, reviewing French J's judgment in Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142; (2006) 154 FCR 365] It involved a Lebanese family who were seeking refugee status. They were initially refused visas, so they sought the advice of a migration agent. Unfortunately this shonky migration agent gave them some extremely bad advice, that they shouldn’t even show up to the tribunal. The family followed this advice and the tribunal decided against them.

If this case was being decided on procedural fairness, it was unlikely that the family would be successful, as incompetent advice or counsel wasn’t enough to satisfy those rules. But what if the case were viewed as a fraud committed on both the family and the tribunal? He searched on the web for cases on this, and found a nineteenth century case from Missouri with purple prose expounding on “fraud vitiates everything.” Unfortunately he wasn’t able to find that case again.

This is relevant because he thinks that serendipity is important in legal research. Legal research isn’t just a matter of looking at a digest. He has found it helpful scanning the indexes in law reports. Sometimes it’s helpful to see linkages between disparate areas of law, because there are a lot of common approaches to solving problems.

5. Conclusion

The judiciary cannot function without access to proper library resources. Law librarians are an indispensable part of the legal process. Because of this, you are persons of power. The danger lies in not making correct use of it.

ALLA 2008: Robin Tapper, Justice and emotion: legal education for human wellbeing

What I learned from this session:
I have recently grappled with the issue of whether the work which lawyers (and law firm librarians) do is morally justifiable. Robin Tapper's presentation was eye-opening because with her background in theology and the clergy, she has thought about these moral issues deeply, yet she has still chosen to return to the legal profession. Listening to her, I could sense her conviction that the work that lawyers do is not just a necessary evil, but it has the potential to be noble.

My disclaimer: This is not a verbatim record of these sessions. I have attempted to be accurate, but I am not a transcriber. These are just my recollections aided by very rough contemporaneous notes. I welcome comments clarifying or expanding on or correcting these notes

Justice and emotion: legal education for human wellbeing
Robin Tapper, Robertson Hayles Lawyers

Robin began by providing some interesting information about her background which had led her to where she is today. In 1994, sixteen years after being admitted as a lawyer, Robin decided to study theology, with a view to eventually becoming an Anglican priest. She was ordained and became an Anglican parish priest in 1998. Unfortunately a bout with cancer disrupted her career in the clergy. After surviving cancer she found herself drawn back towards the law, initially working as a legal officer with the Legal Practitioners Complaints Committee of the Legal Practice Board of WA. In this position, she found herself wondering about the relationship between justice and mercy, and judgment and forgiveness. Is it possible for a good lawyer to be a good peacemaker?

Recently Robin returned to private legal practice. She thinks that the role of judges and lawyers of bearing the pain of human conflict is under appreciated. It's similar to doctors who the bear the burden of treating sickness in society. The difference is that the role of lawyers is often misunderstood. In the same way that doctors don't the illnesses they treat, most lawyers don't create the conflicts, they help other people manage their own conflicts. The personal cost of dealing with this conflict is often not appreciated.

Robin has seen that many people are making a difference in how the law is working now. She thinks that this is a part of a movement which will transform the legal system and legal education during the next 20 years or so.

There are particular developments such as the growth of mediation, therapeutic justice and collaborative law. She wonders if there any overarching theme amongst things?

In non-adversarial justice, we have seen a focus on prevention rather than litigation, solving problems rather than resolving disputes, empowering participants by including them in the decision-making process. She noted even mechanisms like mediation can be very disempowering if the participants don't have any meaningful role in the process.

Therapeutic justice has 3 main elements, voice and validation and respect. Having these things in the process can lead to greater satisfaction for clients, irrespective of the outcome.

Yet we should still treat non-adversarial justice with some caution. As the Chief Justice of NSW Supreme Court has said, there still is a place for adversarial justice. After all, the legal system is more than a dispute resolution service. Yes, it does resolve disputes, but as an arm of government intended to serve the public interest above the needs of parties to disputes.

Similarly, Professor John Wade from Bond University has criticized the false dichotomy whereby all adversarial justice is considered bad and non-adversarial justice is always considered good.

Michael King, an therapeutic justice scholar, has noted that legal education usually emphasizes the impersonal and ignore the personal. There is a need to promote the development of the whole person in law.

There have been other studies of client satisfaction in family law. It seems that adversarial and non-adversarial modes aren't a dichotomy, but a continuum, with many lawyers being able to do both – although lawyers who had received ADR training were more likely to resolve things via non-adversarial means. Procedural justice tends to increase satisfaction, irrespective of the outcome.

What do clients prefer? This research found that clients can want approaches across the adversarial and non-adversarial spectrum, depending on their circumstances, but most interestingly, satisfaction was linked to fairness given to all parties.

Miscellaneous points (these points were not necessarily miscellaneous in the presentation)

There was an article in today's Australian about depression amongst lawyers which seemed opportune given the subject of her talk.

therapeuticjurisprudence.org

She referred to a book called the Soul of the Desert, which has words and illustrations depicting the wonderful things which can be found in the desert.

skipping 2.0

[speculation from the end of this post]

Maybe it's not so much an issue of being comfortable with new technologies. From my experience law firms are embedded very deeply with sophisticated technologies when it comes to document management and knowledge management. Maybe the issue is the mindset, Australian law firms are comfortable with technologies facilitating command & control, and are uncomfortable with the 2.0 technologies which tend to undermine command & control. I can guess that law firms might be very interested in the Semantic web – would it be possible to jump from 1.0 directly to 3.0? What would an organization look like if it deliberately skipped 2.0? Would it even be possible?