Introduction to Legal Research and Writing

AuthorTed Tjaden
Legal research i s a practical skill needed by law yers, law students,
paralegals, judges, law librarians, and members of the public who
must f‌ind and use law-related informat ion such as court cases, legisla-
tion, commentary, and sample court documents and agreement s. With
the advent of the Internet and online legal databa ses, legal research
now encompasses the need to use and m aster 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 techniques
and new sources for f‌inding law-related informat ion and to increase
inform ation literacy.
Related to legal research i s legal writing, also a pract ical skill that
requires clar ity, precision, and an understanding of some basic legal
writing requi rements. Legal writing involves the drafting of a number
of law-related documents, including legal research memos, opinion let-
ters, business agreement s, and court pleadings and factums. Fortunat-
ely, much has been written about legal writing i n the past few years,
and even though legal writing i s not always taught well in law school,
this book provides reader s with a brief overview of effective legal wr iting.
For many lawyers and law student s, legal research and wr iting is a
bad memory of f‌irst-year law school since, despite the effort s of dedicated
law librarians, most law school deans in Canad a do not devote enough
attention to legal research and writing. For f‌irst-time legal researchers,
f‌inding relevant case s and legislation can be dif f‌icult; ensuring that
a particular c ase or statute has not been reversed or amended can be
seemingly impossible for the unin itiated (it is not). Finding and draft-
ing relevant and effective court documents and other law-related docu-
ments pose their own ch allenges. While the introduction of computer
technology has, in many c ases, improved access to legal information,
computer technology also introduces the spect re of “information over-
load” and the danger of being bogged down w ith too much informa-
tion. The need now is to be able to sift effectively through this mass of
information to disti l the particular information relevant to the que stion
being researched.
This book — aimed at lawyers, l aw students, paralegals, judges, law
librarian s, and members of the public — seeks to explain the practical
skills needed for print and onli ne legal resea rch 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 re search and writing by dis-
cussing the following topics: (1) the importance of legal research and
writing literac y to the legal profession, (2) basic legal research tech-
niques and resources, (3) recovery of online research costs, (4) legal
citation, and (5) copyright issues affecting legal research and writ ing.
There should be no need to argue the importance of legal resea rch 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 t he reasons why law schools graduate students
with such poor legal resea rch and writing skills.1 Many law students a re
1 See Nina Scholt z & Femi Cadmus, “Meeting the Ch allenges of Instructi ng
Internation al Law Graduate Students in L egal Research” (2014) 24 Trends in Law
Library Manageme nt & Technology 13; Yasmi n Sokkar Harker, “Information I s
Cheap, But Meaning I s Expensive: Building A nalytical Skil l into Legal Research
Instruct ion” (2013) 105 Law Library Journal 79; Barbara Gle sner Fines, “Out
of the Shadows: What L egal Research Inst ruction Reveals about Incor porating
Skills th roughout the Curriculum” (2013) 2013 Journal of Dispute Resolution 159;
Terry Hutchinson & Nigel D uncan, “Def‌ining and De scribing What We Do:
Doctrin al Legal Research” (2012) 17 Deakin Law Review 83; Mathia s Siems &
Daithi Mac Sit high, “Mapping Legal Res earch” (2012) 71 Cambridge Law Journ al
651; David L Armond & Shawn Neve rs, “The Practitioners’ Council: Con necting
Legal Rese arch Instruction and Cur rent Legal Research P ractice” (2011) 103 Law
Introduction to Le gal Research and Writi ng 3
able to graduate from law school without having done much origin al
research. First-year students, for example, are often provided pre-made
casebooks contain ing much of the law they need to read, lessening
or eliminating t he need to f‌ind their own relevant case s. In addition,
since legal research and w riting are often taught on a pass /fail basis,
many students will regard such courses as being less important than
the substantive, graded courses they are required to take. And since
most law school courses are taught as di screte subjects, there is a false
sense given to students th at legal problems fall nicely into well-def‌ined
categories when, in fact, the real ity is that legal problems are not always
so easily categorized; in real life, these problems must be correct ly ana-
lyzed 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
writ ing be so important to their work? Simply put, lawyers are licensed
Library Journal 575; Sarah Valent ine, “Legal Research a s a Fundamental Skill:
A Lifeboat for Student s and Law Schools” (2010) 39 University of Balt imore Law
Review 173; Marjorie Craw ford, “Bridging the Gap bet ween Legal Education and
Practice: Ch anges to the Way Legal Resea rch Is Taught to a New Generation of
Students” (2008) 12 America n Association of Law Libraries Spectr um 10; Robert
Berrin g, Jr, “Twenty Years On: The Debate over Leg al Research Instr uction”
(2008) 17 Perspectives: Teaching Legal Research and Writing 1; Daniel Perlin, “L aw
Students and Le gal Research: What’s the P roblem?” (2007) 32 Canadian Law
Library Revie w 19; Roy Mersky, “Legal Research versu s Legal Writing with in
the Law School Cur riculum” (2007) Law Library Journal 295; Connie Cros by,
“Students Sti ll Unprepared for Legal Resea rch” The Lawyers Weekly (21 Jul y
2006) 14; Emily Grant, “Toward a Deeper Under standing of Legal Re search
and Writing a s a Developing Profession” (2003) 27 Vermont Law Review 371;
Maureen Fitzgera ld, “What’s Wrong with Legal Re search and Writing? Problems
and Solutions” (1996) 88 Law Library Journ al 247; Donald Dunn, “ Why Legal
Research Sk ills Declined, or When Two Rights M ake a Wrong” (1993) 85 Law
Library Journal 49; R on Mersky, “Rx for Legal Research and Wr iting: A New
Langdell” (1991) 11 Legal Reference Services Quar terly 201; Joan Howla nd
& Nancy Lewi s, “The Effectiveness of Law School L egal Research Traini ng
Programs” (1990) 40 Journa l of Legal Education 381; Christopher Wren & Jill
Robinson Wren, “The Teaching of L egal Research” (1988) 80 Law Library Journal
7; Helene Shapo, “The Frontiers of Legal Wr iting: Challenges for Teaching
Research” (1986) 78 Law Library Journ al 725; Leonard Baird, “A Survey of the
Relevance of Lega l Train ing to Law School Graduates” (1978) 29 Journal of
Legal Education 264 at 273; table 3; Robin Mill s, “Legal Research In struction in
Law Schools, t he State of the Art or, Why Law School Graduat es Do Not Know
How to Find the Law” (1977) 70 Law Library Journ al 343; Sandra Sadow &
Benjamin Be ede, “Library Instr uction in American Law S chools” (1975) 68 Law
Library Journal 27; Robert Schw artz, “The Relative Import ance of Skills Used by
Attorneys” (1973) 3 Golden Gate University Law Re view 321.

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