Legal research: defining the concept

This chapter examines the different requirements of official bodies for legal research skills instruction at the academic and vocational stages and develops a general definition of legal research skills. It also reviews the concept of information literacy and introduces five competencies which marry well with the definition of legal research skills.

Like the phrase ‘information service’, the skill of legal research can mean different things to different people. Although long considered one of the basic skills a lawyer should possess, it has lacked a consistent and universally acknowledged definition. Traditionally, legal research has been applied to the activity of scholarship and writing undertaken almost exclusively by academic lawyers. More recently it has been used to describe the skill students need to acquire as part of their degree and professional studies and eventually employ when in legal practice.

Here we are mainly concerned with how to teach the skill in its recent rather than more traditional guise.

The journey taken here towards a working definition will be informed by statements made by official bodies (both government and professional) on the content of legal education and especially the legal research element. It has been traditional to divide legal education and training into two stages – an initial or academic stage focusing on developing in students a knowledge base (‘thinking like a lawyer’), and the vocational stage, in which students are instructed in how to ‘do things like a lawyer’. At the last analysis it will be shown that there is very little distinctively ‘legal’ about the skill of legal research, and what has been discussed are generic skills of problem analysis, search and retrieval of information and the skill of communication. Finally, the concept of information literacy is introduced and its relationship to the definition of legal research highlighted.

Official statements on legal research

Until the 1980s, in the context of first degree law courses in universities in the United Kingdom, legal research meant simply, ‘how to use a law library and the material it contains’. It was concerned with what lawyers and educators in the United States prefer to call legal bibliography. It was restricted to knowing the structure of the literature of law and showing technical competency in finding one’s way around different types of publication. Evidence of this approach may be found in the famous book which most post-war law students were required to read in the early stages of their course – Glanville Williams, Learning the law, first published in 1945 and which reached its 11th edition in 1982 (the 12th edition did not appear until 2002, revised by other hands). The book was unique in its time, introducing students to a number of ‘foundation’ skills in the study of law rather than the law itself. Legal research was among those skills.

It is interesting to note that in the first edition of Phillip Kenny’s Studying law (1985), which largely replaced the Glanville Williams text in the late 1980s and 1990s, the phrase legal research was used only in connection with postgraduate legal scholarship and not in the chapters for undergraduates describing the importance and use of the law library and the material it contains.

During the same period spanned by the 11 editions of Glanville Williams’ book legal research was not separately identified in the syllabi of undergraduate courses. Often it was included within the topic of English Legal System which, in turn, was “sometimes omitted from the central cluster of subjects on the ground that its constituent parts are secreted in the interstices of the others”. (Report of the Committee on Legal Education under the chairmanship of Mr Justice Ormrod, 1971: paragraph 49).

Typically, first degree study was driven by directed reading, which did not encourage the development of independent research skills. Using the set text, a cases and materials book and reading the key journal articles on the reading list would be sufficient for a student to pass. Student progress was assessed only through performance in examinations. The syllabi for vocational courses made no specific mention of legal research skills, since the profession accepted the apprenticeship method of training. Practical skills (such as legal research) would be picked up while ‘on the job’ in the first professional post (see Ormrod Report, 1971: paragraph 82).

The skills revolution first took root in the United Kingdom in the 1980s in the vocational stage of training. It was influenced by developments in legal education and training in North America and Hong Kong. With this revolution came the first attempts to isolate legal research as a separate skill deserving particular attention in the training of lawyers.

The Bar Vocational Course

By the mid 1980s concerns were being raised regarding the nature and content of vocational courses. The Council of Legal Education commissioned an empirical study of what young barristers do as a key input to the development of what became the Bar Vocational Course (BVC), first offered in September 1989 at the Inns of Court School of Law (ICSL). According to Peter Hungerford-Welch, who took over as co-ordinator for legal research at ICSL in 1990, very little documentation from the time is still in existence and “no one ever got round to producing a formal set of outcomes/standards [for legal research].” However, he explained in an e-mail to the author in March 1998 that “as with all the skills which comprise the BVC, the plans for the teaching were based on an analysis of the sub-skills involved in the skill in question. For legal research the following sub-skills were identified:

• working out the question(s) to be answered
• identifying appropriate source(s)
• identifying keywords to enable effective and efficient use of the index
• assessing the relevance of the material found
• summarising relevant material
• cross-referring to other material in that source or another source
• ensuring that the material found is up to date
• ensuring that the answer is correct (or, if there is no ‘right’ answer that the answer found is properly arguable with a reasonable prospect of success)
• citing sources correctly and accurately
• presenting the answers(s) clearly and concisely

The generic skills of legal research may be identified in this list – problem identification and analysis, information search and retrieval and communication of the results of research.

The content of the course was influenced by new approaches to skills teaching in Canada and Hong Kong. The overseas experience and the BVC interpretation of it were set out in the landmark publication Learning lawyer’s skills by Gold, Mackie and Twining (1989). The book provided materials for developing vocational skills courses around the DRAIN typology – Drafting, Research, Advocacy, Interviewing and Negotiation. However, a close inspection of the text reveals that research is barely mentioned apart from recognising a need to undertake it when preparing to write a good legal opinion (p120). Legal research is also omitted from the set of skills guides forming Chapter 10 of the text.

BVC outcome specification for legal research

In 1996 the General Council of the Bar validated the BVC to be run at approved universities and private sector providers, including ICSL, from September 1997. The outcome specification for legal research adopted for the re-validation event in 2002 and in force for all providers in 2004-05 is as follows:

“The student should approach legal research in a practical rather than academic manner and be selective, precise and efficient in the identification and utilisation of resources.”
The student should be able to:

1. Analyse the issues raised by the case and identify which questions of law have to be answered.
2. Develop relevant keywords.
3. Demonstrate an understanding of the structure of legal literature and the media through which it is made available.
4. Locate and use a law library and the catalogues and indexes it contains.
5. Use IT skills to locate and retrieve relevant information.
6. Select relevant original material, commentary, opinion and guidance.
7. Use indexes within legal materials to find relevant information.
8. Use and interpret legal citations and abbreviations.
9. Check the currency of information.
10. Keep up to date with legal developments generally.
11. Organise the written response into a logical structure.
12. Concisely and accurately summarise or paraphrase relevant material.
13. Apply the law to the facts of the problem so as to produce satisfactory answers to the problem posed.
14. Provide clear advice.
15. Acknowledge the use of all sources and materials cited.
16. Devise a research trail to show how the answers have been reached.
17. Use IT skills to present the results of research.”

    — (General Council of the Bar, 2004)

Again, three elements of legal research may be identified in these course outcomes – problem identification and analysis is covered in outcomes 1 and 2, information search and retrieval is covered by outcomes 3 to 10, communication of results is covered by outcomes 11 to 16. Outcome 15 is a relatively recent but significant addition to the list. As will be shown elsewhere in this guide, the requirement that students submit a research trail provides an opportunity to develop in the learner the skill of reflecting on the work they have undertaken, and provides the tutor with a research strategy, and evidence, or lack of, collaboration and plagiarism. The context is strongly case/client focused.

Law Society Legal Practice Course (LPC)

LPC specification for legal research

At the same time as the BVC was being developed and run for the first time the Law Society was looking closely at ways to make the Law Society Finals course more practical. The consultation document Training tomorrow’s solicitors (Law Society Training Committee, 1990) outlined proposals for changes to vocational courses but made only brief mention in an annex to “research exercises…being included wherever appropriate.” However, the Law Society’s Training Committee considerably enhanced the role of legal research skills, so that in the present Legal Practice Course Written standards (version 10 of September 2004):

“The student should understand the need for thorough investigation of factual and legal issues involved in a client’s matter, the need for preparation and the best way to undertake it. The student should be able to:

1. Determine the objectives of the employer or client.
2. Identify and analyse factual material.
3. Identify the legal context in which the factual issues arise.
4. Identify sources for investigating relevant facts.
5. Determine when further facts are required.
6. Identify and analyse legal issues.
7. Apply relevant legal provisions to the facts.
8. Relate the central legal and factual issues to each other.
9. Identify the legal, factual and other issues presented by the documents.
10. Analyse a client’s instructions and be able to identify the legal, factual and other issues presented by them.
11. Record and present the results of research in a clear, useful and reliable form.
    The student should be able to demonstrate an understanding of:
12. The use of primary and secondary texts.
13. The methods of locating cases and statutes.
14. The use of periodicals, digests, and standard practitioner texts.
15. The use of indices and citators.
16. The use of electronic research tools.”

    — (Law Society Education and Training Unit, 2004)

As with the BVC outcome specifications, three generic skills may be identified – problem identification and analysis, using paper and computerised sources to gather information, and presenting the results in an appropriate manner. The LPC written standards do not mention the need for students to ‘devise a research trail to show how the answers have been reached’ (BVC outcome 15), but LPC Providers do enforce this requirement for assessed work. Similarly to the BVC the context of the LPC written standards is strongly client focused.

Academic stage

Turning back to the academic stage of legal education, the report of the Marre Committee (1988) made recommendations concerning both the academic and vocational stages of legal education as well as considering two other stages – practical training and continuing education. It had little to say about legal research, but expressed concerns about perceived inadequacies in the academic stage experience of students entering the vocational stage. At paragraph 13.5 the report states that the Committee had “received clear evidence from both the College of Law and the Council of Legal Education that some students arrived at the vocational schools exhibiting the following characteristics: (3) inability to undertake independent legal research.”

At paragraph 13.9 the Committee “concluded that those responsible for teaching law at the universities should be made aware of the causes of concern outlined in paragraph 13.5 and should make concerted efforts to meet these deficiencies.”

Nowhere in the report is the phrase ‘legal research’ defined. The addition of the word ‘independent’ in paragraph 13.5 is significant, as it points to a need for students entering a vocational course to be able to research without depending on the ‘crutch’ of a reading list.

Elsewhere (paragraph 12.21), the Committee produced a summary list of legal skills which included “(3) An ability to carry out legal research making intelligent use of all source material”. The Committee concluded that the skill of legal research should be taught at the academic stage of legal education (paragraph 12.23). Clearly, the Committee had in mind a definition for legal research rather different from that employed by the designers of the BVC and the LPC.

In 1990 a Joint Announcement of the Council of Legal Education and the Law Society set out their requirements on core subject teaching which had to be satisfied if a degree was to be accepted as a qualifying law degree – one recognised by the bodies for the purpose of entry into the vocational stage of training. The Announcement made no mention of skills (Law Society & Council for Legal Education, 1990).

In January 1995, the Law Society and the Council of Legal Education issued a revised Joint Announcement which was applicable to those students who commenced their law degree before 2001. It set out a statement of the six Foundations of Legal Knowledge which a qualifying law degree must possess and, in addition, required development of the skill of legal research. The ‘criteria’ for legal research were:

“The ability to analyse a problem involving a question or questions of law, and through research to provide a solution to it. This involves the ability:

1. To identify and find relevant legal sources and materials.
2. To extract the essential points from those legal sources and materials.
3. To apply the law to the facts of the problem so as to produce satisfactory answers to the questions posed.
4. To communicate the reasons for those answers, making use of the legal sources and materials.”

   — (Law Society & Council for Legal Education, 1995)

These criteria were similar, generically, to those used in the written standards for the BVC and LPC – identification and analysis, search and retrieval, presentation of results. However, the context is different in that these skills are employed in relation to a legal problem and are not client focused.

In 1999 this Joint Announcement was in turn replaced by a version effective from 1 September 2001 (Law Society and General Council of the Bar, 1999). The six Foundations are retained in an amended form (Schedule 2) but the detailed criteria for legal research have been swept away. In their place, in Schedule 1, are five Knowledge and eight General Transferable Skills which students should have acquired. Legal research features in two of the Knowledge criteria and four of the General Transferable Skills. Under Knowledge, students should have acquired:

1. The intellectual and practical skills needed to research and analyse the law from primary resources on specific matters, and to apply the findings of such work to the solution of legal problems
2. The ability to communicate these, both orally and in writing, appropriately to the needs of a variety of audiences.

Under General Transferable Skills, students should be able:

1. To select key relevant issues for research and to formulate them with clarity.
2. To use standard paper and electronic resources to produce up to date information.

1. To conduct efficient searches of websites to locate relevant information, to exchange documents by e-mail and manage information exchanges by e-mail.
2. To produce wordprocessed text and to present it in an appropriate form.

The three generic criteria are just recognisable – identification and analysis (Knowledge criteria iv, General Transferable Skill (GTS) criteria iii); search and retrieval (Knowledge iv, GTS iv and vii); presentation of results (Knowledge v, GTS vii and viii). However, as compared with the 1995 Joint Announcement, the current version provides less clear and fewer criteria for the development of a legal research skills programme and places considerable emphasis on the use of electronic media. The focus (academic or client) is less clear than previously, for although Knowledge criteria (iv) speaks of ‘legal problems’, criterion (v) mentions communication appropriate “to the needs of a variety of audiences”. The listings in Schedule 1 jumble knowledge with skills. Placing communication in the Knowledge section is perverse for effective communication is normally considered to be a skill.

The subject benchmark statement for undergraduate law

In 2000 the Quality Assurance Agency for Higher Education (QAA) published a subject benchmark statement for law, to describe the nature and characteristics of the programme of study (Quality Assurance Agency, 2000). Amongst the variety of purposes the statement performs is to “provide general guidance for articulating the learning outcomes associated with the programme but are not a specification of a detailed curriculum in the subject” (Introduction).

The benchmark statement sets out a national standard for law. The threshold statement sets out the standard of the bottom of the third class honours degree. Since “few law schools will probably be content simply to describe the achievements of their students at this level” (page 4), it provides a description of the achievement of a typical (2.1/2.2 boundary) student. An example of such a modal statement is given in Appendix A of the statement – the headings ‘subject sources and research’ and ‘other key skills’ are relevant to legal research and are reproduced in table 1a.

The modal statement is useful for it sets out general criteria not only for the single subject degree but also the mixed degree, law as a subsidiary subject and law at vocational level. However, it is quite difficult to tease out where the three elements of legal research – identification and analysis, search and retrieval and presentation of results – are placed. There is little clue as to the focus of the skill; even under the column for vocational courses the supposed client focus of the work is not explicitly acknowledged.

Appendix B of the statement sets out the benchmark standards as learning outcomes which must be satisfied by the time a degree is awarded. The learning outcomes are illustrative of different levels of achievement and may be used as marking criteria. So, under the headings ‘sources and research’, ‘communication and literacy’ and ‘other basic skills’ levels of achievement expected of a very proficient, proficient and pass level student are provided. These criteria are reproduced in table 1b.

Under ‘sources and research’ it is possible to identify all three of the generic criteria – identification and analysis, search and retrieval and presentation of results. The headings ‘communication and literacy’ and ‘other basic skills’ include features relating to the generic criterion – presentation of results. Some criteria not seen in any of the earlier documents discussed above appear in these lists. For example, students at all levels of attainment are supposed to have exhibited some skill in the use of statistical and numerical information – this might have relevance to the development of legal research skills in identifying and tracing published statistical information (for example crime statistics). Again, the learning outcomes indicate that a very proficient student ought to be able to create a WWW home page and produce HTML documents and set up and manage e-mail discussion groups. Use of spreadsheets is noted in several places. The implementation of these outcomes would affect the content of the instruction in IT skills which should underpin the degree programme, as will be explored in the chapter on learning theory and legal research.

The benchmark statement provides general guidance on the place of legal research within an undergraduate law programme, but, as compared with the specifications of the professional bodies for the LPC and BVC, provides much less detail to assist the course planner. Overall, the accent on legal research is diluted. At paragraph 16 the Statement talks of several ways in which students might be required to exhibit the skill of legal research. The first is in the preparation of a dissertation – which is often an optional course followed by only a minority of undergraduates. The second method suggested is that in preparation for taught modules students may be required to undertake independent legal research for seminars. It goes on to suggest that in some areas it may be appropriate for students to engage in research of non-legal sources and materials as well as legal sources. The text of the Statement appears not to acknowledge legal research as a fundamental skill capable of integration at many points and levels within the curriculum.

This review and discussion has focused on what official bodies have said about the content of legal research for undergraduate and vocational courses. The needs of two groups of students have been overlooked – those following non-vocational postgraduate law courses, which often attract students without a law background from areas such as medicine, administration or business, and the place of legal research in continuing professional development (CPD) within the law profession. No national standards or outcomes have been published for either group, but in subsequent sections of this book the legal research needs of these groups will be considered.

Definition

The concept of legal research as a skill has come a long way from the simplicity and narrowness of ‘how to use a law library and the materials it contains’.

For the purposes of this book, the essential elements of legal research skills may be isolated and expressed generically as:

• identifying and analysing a problem
• finding appropriate information to solve the problem
• presenting the results of the analysis and research in an appropriate and effective manner

These component skills are applicable to any subject of study or vocational practice. Some universities have identified a range of generic skills including those noted above, and devised general skills courses followed by all first year entrants, regardless of their subject of study. The application of these skills within a particular subject is reflected in the technical language in which the problem is expressed and analysed, the structure of the literature which it is necessary to master in order to find the required information and the accepted modes of communication of the results of research employed within the chosen subject area.

Legal research and information literacy

The concept of information literacy is increasingly influencing the approach many UK educational institutions and firms are taking to legal research training. Information literacy encompasses the abilities of students to become competent ‘information consumers’ in our information society, a society which itself is exponentially increasing the information available. Burgeoning information requires the user to be specific in identifying exactly what information is required and possess the ability to evaluate the information found – precisely the generic skills set out above.

The American Library Association (ALA) created the first generally accepted definition of information literacy in 1989, as the skills needed for a person to “be able to recognize when information is needed and have the ability to locate, evaluate and use effectively the needed information” (American Library Association, 1989). The Association of College and Research Libraries (ACRL) of the ALA listed five competency standards for an information literate student, detailing for each standard performance indicators and, most usefully, learning outcomes (Association of College and Research Libraries, 2002). The five standards state that an information literate student:

1. Determines the nature and extent of the information needed.
2. Accesses needed information effectively and efficiently.
3. Evaluates information and its sources critically and incorporates selected information into his or her knowledge base and value system.
4. Individually, or as a member of a group, uses information effectively to accomplish a specific purpose.
5. Understands many of the economic, legal and social issues surrounding the use of information and accesses and uses information ethically and legally.

These five competencies marry well with the definition of legal research given above. The concept of information literacy provides an intellectual framework which can be used to successfully integrate legal research and other QAA benchmark skills into the undergraduate curriculum.

Summary

In this chapter the different requirements of official bodies for legal research skills instruction at the academic and vocational stages have been examined. A general definition of legal research skills has been developed. The concept of information literacy introduces five competencies which marry well with the definition of legal research skills. Before considering how these requirements and definitions might assist with curriculm development (that is, the design of a legal research skills course) in chapter 3, the application of learning theory to legal research teaching needs will be explored in the next chapter.

References

• American Library Association (1989) Presidential Committee on Information Literacy: Final Report Chicago: ALA
• Association of College and Research Libraries (2000) Information literacy competency standards for higher education Chicago: ALA
• General Council of the Bar (2004) Bar Vocational Course specification requirements and guidance (revised August) London: General Council of the Bar
• Gold N, Mackie K and Twining W (eds) (1989) Learning lawyers’ skills London: Butterworths
• Kenny P (1985) Studying law London: Butterworths
• Law Society Education and Training Unit (2004) Legal Practice Course: Written standards (version 10) London: Law Society
• Law Society and Council for Legal Education (1990) Announcement on full-time qualifying law degrees London: Law Society
• Law Society and Council for Legal Education (1995) Announcement on full-time qualifying law degrees London: Law Society
• Law Society and General Council of the Bar (1999) A joint statement issued by the Law Society and the General Council of the Bar on the completion of the initial or academic stage of training by obtaining an undergraduate degree (PDF file) London: Law Society
• Marre, Lady (1988) A time for change: Report of the Committee on the Future of the Legal Profession (presented to the General Council of the Bar and the Council of the Law Society)
• Ormrod, Mr Justice (1971) Report of the Committee on Legal Education (presented to Parliament by the Lord High Chancellor) (Cmnd 4595) London: HMSO.
• Quality Assurance Agency for Higher Education (2000) Subject benchmark statements: Law Gloucester: QAA

Last Modified: 4 June 2010