Introduction to Legal Research and Writing

• Author: Ted Tjaden
• Profession: National Director of Knowledge Management McMillan LLP
• Pages: 1-35

1

CHAP TER 1

INTRODUCTION TO

LEGAL R ESEARCH

AND WRITING

Legal research is a practical skill needed by lawyers, law students,

paralegals, judges, law librarians, and members of the public who must

f‌ind and use law-related information such as court cases, legislation,

commentary, and sample court documents and agreements. With the

advent of the Internet and online legal databas es, legal research now en-

compasses the need to use and master both print and online resources.

Computer technology has changed much in legal research in Canada

with the increase in the amount of law-related information available

online and improvements in search and retrieval software. With these

changes comes the need for many to learn new tech niques and discover

new sources for f‌inding law-related information.

Related to legal research is legal writing, also a practical skill t hat

requires clarity, precision, and an understanding of some basic legal

writing requirements. Legal writing involves the drafting of a number

of law-related documents, including legal re search memos, opinion let-

ters, business agreements, and court pleadings and factums. Fortunat-

ely, much has been written about legal writing in t he past few years, and

even though legal writing is not always taught well in law school, this

book provides readers with a brief overview of effective legal writing.

For many lawyers and law students, legal research and wr iting is a

bad memory of f‌irst-year law school since, despite the efforts of dedi-

cated law librarians, most law school deans in Canada do not devote

enough attention to legal research and writing. For f‌irst-time legal re-

searchers, f‌inding relevant cases and legislation can be diff‌icult; ensur-

LEGAL R ESEARCH A ND WRITING2

ing that a particular case or statute has not been reversed or amended

can be seemingly impossible for the uninitiated (it is not). Finding and

drafting relevant and effective court documents and other law-related

documents poses its own challenges. While the introduction of com-

puter technology has in many cases improved access to legal informa-

tion, computer technology also introduces the spectre of “information

overload” and the danger of being bogged down with too much infor-

mation. The need now is to be able to effectively sift through this mass

of information to distil t he particular information relevant to the ques-

tion being researched.

This book —aimed at law yers, law students, paralegals, judges, law

librarians, and members of the public — seeks to explain the practical

skills needed for print and online legal research and for legal writ ing. It

provides a current and comprehensive look at the topic, consolidating

information on legal research and writing into one handy, easy-to-use

resource. This chapter introduces legal research and writing by dis-

cussing the following topics: (i) the importance of legal research and

writing literacy to t he legal profession, (ii) basic legal research tech-

niques and resources, (iii) recovery of online research costs, (iv) legal

citation, and (v) copyright issues affecting legal research and writing.

A. THE IMPORTANCE OF LEGAL RESEARCH

AND WR ITING LITER ACY

There should be no need to argue the importance of legal research and

writing, but considering the short shrift it is often given in law school,

it is understandable that some law yers may not regard legal research

as important as other skills, such as advocacy and negotiation. In fact,

much has been written on the reasons why law schools graduate stu-

dents with such poor legal research and writing skills.1 Many law stu-

1 See Robert C. B erring, Jr., “Twenty Years On: The D ebate over Legal Research

Instruct ion” (2008) 17 Perspectives: Teaching Leg al Research and Writi ng 1;

Daniel Perlin, “L aw Students and Legal Rese arch: What’s the Problem?” (2007)

32 Can. Law Libra ry Review 18; Roy M. Mersky, “Legal Rese arch versus Legal

Writing wit hin the Law School Curr iculum” (2007) 99 Law Library Journ al

295; Connie Crosby, “Students Stil l Unprepared for Legal Resea rch” The Law-

yers Weekly (21 July 2006) 14; Emily Grant, “Toward a Deeper Underst anding

of Legal Rese arch and Writing as a Deve loping Profession” (2003) 27 Vt. L. Rev.

371; Maureen F. Fitzgerald, “What’s Wrong w ith Legal Research an d Writing?

Problems and Solut ions” (1996) 88 Law Libra ry Journal 247; Donald J. Dunn,

“Why Legal Re search Skills Decli ned, or When Two Rights Make a Wrong”

Introduction to L egal Research and Writ ing 3

dents are able to graduate from law school without having done very

much original research. First-year students, for example, are often pro-

vided pre-made casebooks containing much of the law they need to

read, lessening or elim inating the need to f‌ind their own relevant case s.

In addition, since legal research and writing is often taught on a “pass-

fail” basis, many students will regard such courses as being less im-

portant than the substantive, graded courses they are required to t ake.

And since most law school courses are t aught as discrete subjects, there

is a false sense given to students that legal problems fall nicely into

well-def‌ined categories when in fact the reality is that legal problems

are not always so easily categorized, problems that in real life must be

correctly analyzed if the research being performed is to be meaningful

and effective.

1) Competent Lawyers Know How to Research

What is it then that law yers do, and why would legal research and wr it-

ing be so important to t heir work? Simply put, lawyers are license d pro-

fessionals who are given a monopoly to provide legal advice to clients.

Given that modern society is unfortunately complex with numerous

(and sometimes conf‌licting) rules that govern relationships between

individuals, there is a role to be played by lawyers in helping people

understand their legal rights and structure their affairs to comply with

these complex rules. The role that law yers play therefore involves two

basic tasks: (i) understanding the law, which requires legal research

skills, and (ii) communicating the law to the clients or to judges, which

requires, among other things, legal writing skills.

(1993) 85 Law Library Journal 4 9; Ron M. Mersky, “Rx for Legal Researc h and

Writing: A New L angdell” (1991) 11 Legal Reference Serv ices Quarterly 201;

Joan S. Howland & Nancy J. L ewis, “The Effectiveness of La w School Legal

Research Trai ning Programs” (1990) 40 J. Legal Educ. 381; Christophe r G.

Wren & Jill Robinson Wren , “The Teaching of Legal R esearch” (1988) 80 Law

Library Jour nal 7; Helene S. Shapo, “The Frontiers of Legal Writi ng: Challenges

for Teaching Resear ch” (1986) 78 Law Library Jour nal 719; Leonard J. Baird,

“A Survey of the Relevance of Le gal Training to Law School Gradu ates” (1978)

29 J. Legal Educ. 264 at 273, table 3; Robin K. Mi lls, “Legal Research I nstruc-

tion in Law Scho ols, the State of the Art Or, Why Law S chool Graduates Do Not

Know How to Find the Law ” (1977) 70 Law Library Journ al 343; Sandra Sadow

& Benjamin R. B eede, “Library Instr uction in American Law Sc hools” (1975)

68 Law Librar y Journal 27; Robert A.D. Schwartz, “The Rel ative Importance of

Skills Used b y Attorneys” (1973) 3 Golden Gate U.L. Rev. 321.