E. Tips to Avoid Legal Research and Writing Malpractice

Author:Ted Tjaden
Profession:National Director of Knowledge Management McMillan LLP

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the risk and consequences the client would face where the law is unsettled for a particular issue.

To minimize careless drafting errors, lawyers should regularly consult "forms and precedents" materials for sample pleadings and agreements and actively edit these sample documents to conform to a client’s specific needs. Legal writing is discussed in detail in Chapter 12.

What is less clear in the American (and Canadian) case law is the extent to which a lawyer is obliged to conduct online legal research or risk being held negligent for not uncovering relevant law.31Given the increasing use of computers and the availability of flat-rate fees for many of the online commercial databases, the time has likely come where a Canadian court, in the right circumstances, could easily conclude that failure to research a point of law online will result in professional negligence.

Ultimately, the focus should be on conducting good quality legal research that uses the most appropriate sources of information, whether print or online, depending on the circumstances, the issues being researched, the instructions from the client, and the importance of the matter. In certain situations, it may be that resorting to print-based textbooks would be a prudent source of information, whereas in other situations there may be no choice but to conduct full-text keyword searches in online databases to locate otherwise hard to find information:

Whether a lawyer should resort to Westlaw or Lexis to find the latest case or utilize other electronic media resources or go to a law library depends on the circumstances. The fact that technology provides greater efficiencies and may afford lawyers a competitive advantage does not mean that it is unethical not to use technology. In the end it is the quality of the legal work and not the speed at which it is done that matters. Given today’s technologies and the inventions that will serve lawyers in the future, the practice of law still requires the exer-

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cise of judgment by the legally trained mind. Although access to law may become automated, the practice of law will not.32Considering the factors discussed above that courts would likely apply to judge whether a particular lawyer was liable for legal research malpractice, it is prudent for lawyers and legal researchers to develop standard practices or checklists that will help remind them of the multiple steps involved in legal research. The legal research...

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