JILT 1997 (2) - Cnossen & Smith
Developing Legal Research Methodology to Meet the Challenge of New Technologies
|Dr. Christine Cnossen||and||Veronica M Smith|
|The Robert Gordon University , Aberdeen|
With the increasing emphasis being placed on generic skills, and the trend in practice to take a broader view of the function of solicitors, the status of legal research methodology requires to be reappraised. This reappraisal necessitates a reconsideration of the impact of information technology on legal education to ensure that as the use of technology increases, generic skills of problem solving are not neglected.
Having identified and discussed these issues, this paper will provide an indication of appropriate educational aims and objectives for a module in legal research methodology, incorporating a general comment on the types of information technology which also require to be included in such a course.
Key words: Generic skills- Information technology - legal research methodology-law curriculum
This is a Commentary article published on 30 June 1997.
Citation: Cnossen C and Smith V, 'Developing Legal Research Methodology to Meet the Challenge of New Technologies', Commentary, 1997 (2) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/resmeth/97_2cnos/>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1997_2/cnossen/>
Within the broad legal arena there has for many years been a difference in opinion as to the purpose of legal education - whether it is more vocational than intellectual. The move towards emphasising generic skills unquestionably demonstrates a general trend towards the practical in degree level courses. Such a move obviously blurs the artificial divide between degree education and legal practice courses. Acknowledging this trend necessitates reconsideration of current teaching methods to ensure that necessary skills are being developed. The lack of training places for a large percentage of law graduates, should also strengthen the resolution of law schools to ensure the general employability of their students.
Traditionally, 'Competence in retrieving and assessing, analysing and using legal texts' is a required legal skill, and was identified as being one of the five core skills of legal practice by the Law Society of England and Wales. Even in practice, certainly with the growth of computer based sources, the processes of accessing data have broadened, and hence the format of research may now be quite a different experience from that of practitioners ten/twenty years ago
The fundamental issue which this paper seeks to address is whether the newer sources of data, and new modes of learning have provided a catalyst to stimulate the development of legal research methodology to meet the needs of the new law student, the lawyers of the future, and if so, how we should approach instruction in legal research methodology.
Of particular concern for our purpose is the development of legal research skills since it is our perception that despite the computerisation of may sources of law not much has been done to deepen and strengthen general research skills within the law curriculum. Such a conclusion is evidenced by the research recommendations for undergraduate degree level students made by BILETA that '..all law students should have been introduced to the major IT resources by means of a lecture. As a model of best practice, students should have the ability to search efficiently and independently on-line resources and CD-ROMS for materials of relevance to their own essays/assignments.' According to the report it is only when dealing with postgraduate students that it is best practice to instruct them in the use of statistical and bibliographic packages. Fundamentally the issue as to what ought to be included in courses must be reviewed to keep abreast of broader educational developments, and also, in more vocational area, focused on developments within that area.
Central to the diverging views as to the purpose of legal education referred to above is the perception of the role of the practitioner as one who is a problem solver, whose research pattern is analysing facts - search authorities - preparing writs etc. whereas the academic may be involved in a range of activities from investigating precedents on a particular topic, writing an article to carrying out primary socio-legal research via questionnaires, or interviews Should the role of the solicitor be changing to a more general advice provider as some have suggested then it is contended that this division will be weakened. Certainly if the direction of practice is to move even more towards risk management then the ability to deal with statistical information will become increasingly advantageous.
Whether practice is changing is a moot point. Technological advances have certainly been adopted by a number of firms, but that doe not lead to the conclusion that the nature of practice has fundamentally altered. Whilst there are innovators within practice, it is interesting that in 'The Computerised Lawyer'(1991) in which Philip Leith reported his survey of barristers 'None have said that they use computer-based systems with any regularity, and all have suggested that they find text books and traditional materials and their routine knowledge ... sufficient for their needs.' Whilst such a survey could now be dismissed as rather dated in view of advances in technology, nonetheless it is illustrative of a view that technology is merely a means to carryout traditional tasks in a different format, not actually to change a process of working/ thinking.
The pace of change within the legal profession is therefore not particularly radical. Indeed, on a more local basis on 24th April 1997 at a computer evening arranged by the Robert Gordon University, Aberdeen a survey of 20 solicitors was carried out. Somewhat surprisingly whilst 50% had CD-ROM computers within their office, only 10% subscribed to any legal CD-ROM software and only 5% subscribed to any on-line databases such as LEXIS. . However, in contrast to the lack of uptake on legal sources software, 15%, made use of voice activated PCs. No doubt the relative cost of the voice activation compared favourably with that of legal sources software. Perhaps more importantly in gauging the impact of technology on solicitors within remoter geographic areas was the admission by 85% that they do not read any computer journals, articles etc, and that for 65% this had been their first attendance at a computer event. Certainly interest in becoming involved with technology was expressed by all attending, however a large knowledge and training gap will have to be addressed before any 'revolution' in legal practice within Aberdeen!
It can still be concluded that practice is becoming more computer orientated, whilst acknowledging that in some areas computers have yet to be exploited. As determining and responding to trends is essential if Universities are to produce graduates with the correct skills, the process of legal research is a skill that must be taken seriously. The need to ensure that students can deal with law in a broad context may not yet be obvious to current practitioners in many fields, however as firms move towards risk management, which some of the larger firms are already doing, and efficiency models of practice the need for a broader understanding becomes more apparent.. The use of economic modes to analyse legal results is developing (Amin S.H,1992,p85).
An immediate reaction to technology within legal research is an appreciation of the speed and convenience of accessing databases and CD-ROMS from desk top terminals/ PC's. Such software is very useful, and arguably not overly expensive, although perhaps still out of reach for a number of smaller firms. Whilst not devaluing the benefits of such software, in broad terms that software does not necessarily encourage/ develop research skills beyond the traditional model of problem solving. Use of such software, if anything, merely reinforces the very positivistic view of law as a collection of rules. it does not encourage viewing law in a social context. The key to using such software to develop a broader view of law remains in the way the software is used, the approach and skills of the user. Hence the importance of ensuring that within legal education even at undergraduate level students are introduced to broad based research skills and not merely computer enhanced 'finding the law' skills. Interestingly, the definition of problem solving within the DfEE-funded project on 'General transferable Skills in the Law Curriculum' includes 'the ability to plan, conduct and implement a research project; an ability to synthesise, demonstrating the ability to bring together in a coherent form the different facets of the materials studied. This requires an understanding of appropriate contributions from other disciplines.'
It is our contention that within our courses legal research methods must be addressed in a broad context. The application of scientific research methodologies, methods, and techniques have long been a part of social research in various disciplines and form an important element in studying, understanding, and explaining human relations. Reflecting the importance of this field, the study of Legal Research Methods should constitute a key component of teaching at various levels, including under graduate degree level.
A general understanding of theoretical and applied research procedures gives one a better grasp of various aspects of social enquiry. Applied researchers seek to create knowledge that can be used to solve pressing social and organisational problems. For example, the effectiveness of policies and programmes to reduce delinquency or crime, combat health problems or improve the standing of women and ethnic/racial minorities in the workplace all pose problems of evaluation. Thus, the ability to carry out desirable policies rests in part in making accurate and rational decisions based on adequate information. Likewise the solicitor engaged in generic legal advice requires adequate information of both a legal and business nature to ensure problems for his clients do not arise. It is the researcher's task to collect and present evidence objectively and dispassionately.
A course in Legal Research Methods stresses the plurality of research techniques, the importance of research choices, and a general concern to gain reliable and valid knowledge. The relationship between theory and practice is explored, as are the techniques for collecting, analysing and interpreting research findings. Additionally, an understanding of research methods will assist Honours and post-graduate students to conduct and write up their dissertations, as well as other students involved in evaluating and writing research reports.
A Legal Research Methods module is designed to introduce, explain and illustrate the research process, methods and methodologies that are utilised in the social sciences which are necessary to define the research problem; formulate and investigate research questions and hypotheses; and collect, analyse, and present data in its various forms. Within the legal arena it would be most appropriate to incorporate instruction in general data presentation with the use of electronically available practice styles. The overall emphasis will be on the rich array of tools that are available to facilitate the study and collection of information on both theoretically and practically important topics. At the same time attention must be paid to the limitations of each research method (such as frequency of updating) and probable mistakes that can lead to data loss.
It is important to become familiar with not only interventionist methods such as questionnaires and their construction, interviewing, and direct observation but also the techniques of unobtrusive research such as the use of archives and records. In this respect the various sources of law and legal information available in an electronic format should be explored, along with the traditional modes of finding the law via paper based materials. Different forms of sampling along with data processing and analysis must also form part of the module. The need to introduce students to statistical packages should not be ignored.
In bringing such recommendations together, by the end of the module students should be able to:
- Describe the main methods associated with research methodology, examine their underlying assumptions and discuss their main advantages and disadvantages, limitations and probable mistakes that can lead to data loss.
- Demonstrate an understanding of theory and the nature of research in the Social Sciences.
- Be familiar with a range of Quantitative and Qualitative research techniques.
- Apply the theoretical understanding of research methods to the collection, analysis, presentation and interpretation of data, using appropriate electronic resources.
- Demonstrate a basic understanding of quantitative data analysis with such packages as SPSS.
- Be able to present research results clear, concise and coherent manner.
Whilst a separate module is in some senses preferable, as unless institutions strictly monitor the development of research skills within the general curriculum, these skills can be neglected, the core points of the legal research methodology recommended can obviously be incorporated into other modules, especially within an IT module.
Indeed it is arguable that IT and legal research methodology must be clearly linked due to the increasing importance of computer based resources. Much of the current use of IT within legal education in the nature of LEXIS training or IOLIS (or the Scottish Courseware Consortium) does not go much past presenting traditional teaching modes of legal principles and sources. It is not necessarily a criticism of the software, as essentially any medium which helps develop legal knowledge in a resource efficient manner is a helpful development. Rather it is a challenge to those using IT within legal education to ensure that in exploiting the various computer based resources available, they also prepare and develop generic skills, especially that of research.
Whether legal practice is changing as fast and as dramatically as some may suggest is questionable, however it is undeniable that the practice of law is becoming increasing more reliant on electronic sources of information. Within our education system it is imperative that this change towards electronic sourcing and tutoring does not result in the neglect of generic skills. The need to rethink the content of law courses to give priority to generic skills should increase the importance of legal research methodology. The approach suggested in this article serves as a starting point for taking our education forward, catering for the needs of all students whether they intend to become practitioners of law or not.