Uncertainty and Legal Research

by Paul Gatz

Whenever I prepare to teach legal research to law students, I try my best to imagine what learning legal research is like from their perspective. Admittedly, this was much easier to do when I first got the chance to teach and was myself only a few years out of law school. As my own experiences drift further into the past, however, my memories naturally fade. Moreover, as new online products alter the array of tools that are used for research, I sometimes wonder whether the current law student’s experience of learning legal research is fundamentally different than it was a mere 5-10 years ago.

For this reason, when I try putting myself into the shoes of a student learning how to research, I try not to rely on just my memories of the databases or the cognitive processes involved in my first legal research experiences. Rather, I try to think about how those first legal research experiences felt. Not incidentally, those memories of the frustrations, anxieties, and rare joys of legal research remain distinct, and of course it is the frustrations and anxieties – and not the joys – that really stand out.

I imagine most experienced legal researchers would recognize these sorts of frustrations. From the beginning to the end of a research project, the researcher is confronted by the unknown. How and where do I start? How do I figure out the best secondary source to use? Is this Boolean search doing what I think it should? Which of the cases in this massive list of results is actually relevant to my problem? How do I know that I haven’t missed a key case?

img_0297

One of Laredo Taft’s Sons of Deucalion and Pyrrha, deep in the throes of research despair.

With greater knowledge of legal doctrine and more experience in legal research, the
anxieties raised by these questions diminish considerably, but for the novice researcher, these questions can lead to a great deal of frustration and confusion. It is worth noting that all these questions, like a multitude of shadows cast by a single object, have their origins in the same cognitive state: uncertainty.

Over 20 years ago, Carol Kuhlthau published “A Principle of Uncertainty for Information Seeking” in the Journal of Documentation. Based on her empirical studies of information seeking behavior based on the user’s perspective, Kuhlthau developed a model of the information search process consisting of a series of stages and posited an uncertainty principle as the underlying conceptual framework for this process. Each stage can be characterized as playing a unique role in the user’s progression from uncertainty at the initiation stage to understanding at the presentation stage.

Uncertainty has both cognitive and affective aspects. The cognitive aspect is “a lack of understanding, a gap in meaning, or a limited construct.” [347] The affective aspect includes feelings of “uncertainty, confusion, and frustration.” [Id.] My memories of how I felt during my first legal research experiences are memories of this affective aspect of uncertainty, and those feelings were likely closely related to my struggles with the cognitive aspect, my own lack of understanding of both the substantive law and the tools and methods of legal research.

The principle of uncertainty has an intuitive appeal as a foundational concept for information seeking and research. After all, if you already understand something, you have no need to research. It may even be that those symptoms of frustration and confusion are a good thing, since they help the researcher to recognize precisely where those gaps in understanding are. Put another way, if you’re not getting frustrated when you’re researching, you’re doing it wrong.

Every legal research project begins with uncertainty about how the law applies to a particular set of facts. The researcher’s task is to find information and authority that will lead to a practical understanding of the law and its application. Uncertainty may decrease as the researcher skims secondary sources and peruses statutory language, only to increase again when the researcher confronts a large variety of cases or happens upon a source that changes the analysis completely.

But does the cognitive aspect of uncertainty necessarily entail the affective aspect? The researcher can easily access a wealth of information in multiple formats online. What is there to be frustrated or confused about when you can ask a search engine for the elements of burglary and get a reliable answer? Or when you can upload a brief and be automatically directed to important cases you missed?

But algorithms and artificial intelligence, like databases and books, are merely tools. They make legal research easier, but cannot remove the frustration and confusion caused by uncertainty. So long as laws need to be applied to novel situations, the researcher will need to make that progression from uncertainty to understanding.

Based on his or her own experiences, the legal research instructor can point out a few places where the novice researcher is likely to encounter frustration, confusion, or anxiety, but the experienced guide cannot hope to alert the tenderfoot to every danger. The best we can do is prepare them to be ready when, in the depths of their research, surrounded by conflicting cases, dense statutes, and bizarre Boolean operators, uncertainty casts its shadow.

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About Paul Gatz

Paul Gatz is a reference librarian and adjunct professor at The Ohio State University Moritz College of Law.
This entry was posted in Legal Research, Legal Research Instruction and tagged , , . Bookmark the permalink.

3 Responses to Uncertainty and Legal Research

  1. Scott Frey says:

    Thank you for this article. I agree with your views about the need for legal research instructors to address the uncertainty of the novice legal researcher. The only thing I’d add is that there’s a danger that a legal researcher will try to resolve his or her uncertainty — either at the outset or later on — by looking at an initial page of results on Westlaw, Google, or other search engine, and taking the first plausible result as the answer. The instructor must help the novice understand that the first answer, even on a legal database, isn’t necessarily the best or final answer. The instructor can explain that uncertainty is a good thing when it leads the researcher to do at least a little more work to find a better answer or to conclude that the law is uncertain on a particular issue. (I think you essentially suggest my last point when you state, “It may even be that those symptoms of frustration and confusion are a good thing, since they help the researcher to recognize precisely where those gaps in understanding are.”)

    • paulgatz says:

      Thanks for your comment, Scott. I think you’ve correctly pointed out a serious danger in the way our students may be accustomed to researching. Part of preparing students to deal with uncertainty should involve helping them to see how their research fits into the scaffolding of legal analysis. An initial page of results may cut it for some types of research, but in order to do a proper legal analysis, the legal researcher must dig deeper. Trying to meet the rigorous standards of legal analysis is a large part of what makes legal research so difficult and frustrating. And to that extent, uncertainty is undoubtedly a good thing.

  2. Pingback: In Praise of the Reflective Essay: The Mushy and the Meta | RIPS Law Librarian Blog

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