Monday, February 25, 2013

How now Scholar! whither wander you?

Henry VIII (IV.2)
While avoiding hunkering down and memorizing her lines for the upcoming class production of A Midsummer Night’s Dream, my daughter reported that she’d made a discovery. “It’s a very helpful site with all this Shakespeare stuff.” The Internet site she’d found is one hosted by MIT and managed by an MIT alum. And it is indeed a great free resource—the Bard’s complete works collected in a nice searchable format: I told her that I use this site all the time—when I don’t have my old hard copy of The Riverside Shakespeare handy or can’t remember where a particular line came from. We then had a nice chat about “credible web resources.” The discussion reminded me of the blessing-and-curse that is the task of legal research these days.
Regular people can find some information about virtually any subject now with no more effort than it takes to compose an intuitive Google search. But just because a person finds some information, that does not mean the information is reliable, let alone complete or timely. Such searches, therefore, have considerable limits in terms of efficacy. They can be great for resolving arguments in bars about which major-leaguer had the best betting average in 1957 or who was the Earl whom some purport is responsible for authoring Shakespeare’s  work or whether the SCOTUS has granted a particular cert petition this term. Getting more nuanced answers to questions that are not just a matter of “hard facts” is much more challenging.
But because people can easily find so much information about all manner of topics—including all manner of legal topics—many have started to push back against the notion that lawyers are particularly special because of their access to material that can illuminate answers to legal questions. Folks wonder, “Why should I pay some lawyer $300 or more an hour to find answers that I can now find on my own?” Even many law students think this way: “Why should I bother to learn how to use pricey, proprietary legal databases efficiently when I can always Google my way to some first approximation—maybe even some lawyer’s CLE PowerPoint Slides with all the key cases on an issue?”
In truth, conducting truly confidence-worthy legal research, like drafting effective legal writing, requires special skills generally captured by the phrase “thinking like a lawyer.” Researching legal questions is tricky business because the answers to most meaningful legal questions are not digital or neatly laid out in books.  Crafting meaningful and useful searches to run in specific databases is a skill that will yield better results than garden variety Google-searching ever will.  Yet starting with those free searches makes perfect sense because—well, it’s free and, if you know how to look at search results critically, the free stuff can help you learn enough to create intelligent, tailored searches that will be more successful.
With legal research, success means finding (1) accurate information that is (2) truly on point and, ideally, (3) binding.  But scoring this trifecta can be like finding a whole, unblemished Grecian urn circa 1000 B.C.E.  This is because:
To be accurate, legal information must be current.  Yet the law, comprised of both common-law traditions and statutory schemes codified by legislatures in each state and at the federal level, is forever in flux.
To be on point, a legal authority must deal with a situation sufficiently similar, in terms of both facts and law, to the legal mystery you seek to solve.
To be binding, the law must emanate from a court or a legislature that controls the conduct of the particular entities involved in your legal drama.
Here’s a hypothetical example.  You are trying to find out if your client, a West Virginia resident injured by a collapsing bed in a Texas hospital, can sue that hospital for negligence.  Finding a current article on West Virginia tort law will not help, however, because tort law varies tremendously from one state to another.  And in most states, the law of the state where the accident occurred will control.  But finding a 2002 Texas state court case involving similar facts will not help either because in 2003 the Texas legislature radically rethought the state’s approach to negligence claims, substantially curtailing the available options for bringing claims against healthcare providers of every stripe.   And if you find a current Texas federal court case involving factually similar claims against a hospital, it may not necessarily have anything to do with Texas state law.  That is, a particular federal court may have jurisdiction over a case because it involves parties and subject matter that allow the court to hear it without offending the U.S. Constitution; and the case may involve state law claims; yet those claims may not be Texas state law claims simply because the federal courthouse where the case was filed is in Texas. 
Learning to decipher all of this madness is part of the heaven-and-hell of American law practice.  Suffice it to say that legit legal research is not just a matter of unearthing something that is relevant—which is all Google and the like can promise at this point. A lawyer, like a scholar, has to strive to be “an honest chronicler” of a complex legal landscape, not just one who settles for any old source to support an impressionistic notion of what untethered instinct says.

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