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?

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.