by Brandon Wright Adler
Last week I gave a lecture to the Advanced Legal Research course about the economics of legal research. Most of the students in this class are 3L’s and nearly ready to take on the legal world. Well, even if they aren’t, they are about to be thrown head first into their chosen career path. Anyhow, in this lecture, for shock value (and for actual value) I opened with the anatomy of the billable hour. Going over the pros and cons of using the billable hour system, the students seemed to be aware, if not mildly comfortable with what this system entails. This was including the part where they are at work for an actual total of 50 hours a week, not including drive time, but only really billing for 37.5 hours AND the fact that those 50 hours will not get them anywhere near the respectable average of 1800 billable hours annually (on the low end). However, fear and shock quickly struck as I was showing them price list examples of the BIG 3 legal databases: Westlaw, Lexis Advance, and Bloomberg Law.
What I quickly learned as the lecture went on is that these 3L law students were not so comfortable with the plethora of low-cost and free legal research resources out there. By not so comfortable I mean, they had little-to-zero knowledge that much of anything existed outside of the Big 3. This post will not serve to reiterate these low-cost or free resources, as most of us already know these resources. Instead, I’ll point out the benefits and the reasons it is necessary that we, as legal information professionals, are talking to our administration and curriculum committees about the importance of making Advanced Legal Research (taught by law librarians) a required course.
First, it is absolutely necessary that legal research skills be taught beyond the first year of law school. During the first year of law school, students are learning so much brand new information that they will be lucky to remember their names by the end of the year. Further, the first year of law school forces an individual to completely break down nearly all of their already developed learning habits and start from square one. You do not get taught the same way in law school as you did for previous educational programs (Socratic method, anyone?). You are not tested the same way in law school as you have been tested through every other educational program in life. And, therefore, you do not study the same way in law school that you studied for other programs. So, as law schools are teaching basic legal research skills during 1L, students are also keeping in mind that their doctrinal courses are worth far more credit. They are also weighing the fact that they only need to learn enough to complete their writing assignments. Whether legal writing and legal research are taught together or separate, the students are not building any sort of foundation because they are not asked to use these skills again. And they are generally not being asked to use these skills any further than Westlaw or Lexis Advance because that is what they have available to them through the school. Or, perhaps, they are using Fastcase or Casemaker because their summer employer may have those databases through bar association memberships, although, students can now use their Westlaw and Lexis accounts for summer employment, too.
Second, we have to keep in mind that not all students graduate from law school, pass the bar, and go on to work for big law firms. Especially here at Loyola New Orleans College of Law; we have a lot of students who go on to practice in a solo or small firm capacity. While it is not logical to have students learn about these low-cost and free legal research resources as a 1L, the opportunity to give these resources context will increase as the students attend more classes, write seminar or journal papers, join a clinic, or participate in more internships during their 2L and 3L years. Particularly, in their 3L year, students may be solidifying the type of law they would like to practice and in which type of atmosphere they would like to be. In a small firm or as a solo-practitioner, low cost and free legal research resources can make or break the new, budding attorney. By break, I mean it literally; if they do not know how to use low-cost or free resources they could potentially bankrupt themselves or lose clients. Even many large firms today no longer pass on the cost of research using these expensive databases because clients are asking for a more specifically itemized bill and refusing to pay the exorbitant cost.
Third, students who are under educated on the topic of legal research, especially low cost, free, and alternative legal resources, run the risk of one day being sanctioned by the Bar as an attorney. The ABA Model Rules of Professional Conduct prohibit illegal or excessive fees. Further, Rule 1.1 requires that a lawyer “provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” Failing to represent one’s client to the best of their ability, without passing on any burden to the client, is of utmost importance, and as legal educators, we should strive to provide our students with the absolute best opportunity to do so.
The point is, we all know that every legal case begins with research. Why, then, does legal research seem to take a back seat after the first year of law school? In order to make our students the strongest practitioners possible, we need to make advanced legal research a required component of the curriculum.