Advancing Public Interest Practitioner Research Skills in Legal Education

• Publication year: 2005
• Citation: Vol. 7 No. 2005

Randy Diamond⁰ "Creative handling of novelty, therefore, is of the essence of professional practice."¹ I. Introduction

The computer age has rekindled concerns about attorneys' research practices and proficiencies.² Lawyers who refuse to venture onto the information superhighway are warned that they may fail to meet minimum legal research standards,³ but at the other extreme, so may Internet speeders who bypass print sources entirely. For ethically challenged lawyers, avoiding malpractice may be the prime incentive for scrounging up enough rudimentary research skills to get by. For most experienced and new lawyers, professional pride and genuine client concern motivate the development of sound research skills. With the rise of law practice globalization and new cutting edge practice areas, the scope and complexity of potential client problems grows rapidly, often beyond the most able counsel's expertise. Interdisciplinary research and expert consultation are hallmarks of twenty-first century practice.⁴

Successful law practice research requires skills beyond what students ordinarily obtain in the traditional law school curriculum. The research methods and sources attorneys use to solve client problems often differ from the research they conducted as law students.⁵ Lawyers must be technologically sophisticated in their research, but even more sophisticated in applying research. Advanced legal research courses taught by law librarians are popular among students seeking to improve and sharpen their research skills for law practice.⁶ Law librarians, many of whom have practiced law, provide expertise in law practice research expectations and trends, experience in using practitioner print sources, and cutting edge online research techniques. When these courses are taught well, students have a leg up on peers who are not similarly prepared.

The time is ripe to explore other advanced research instruction opportunities.⁷ This article encourages clinical and law librarian collaborations to further prepare law students to conduct effective legal research in law practice. Clinical courses, because they closely resemble law practice, are ideal for students to practice many of the real-life research skills they will need after law school. As with any lawyering skill, students only become good at research by doing it and learning from their mistakes.⁸ The clinical experience provides context for answering the why, when and how questions of practitioner research. As students gain research skill and confidence, they become better problem solvers. In turn, the community the clinic serves benefits directly from having better prepared students representing them, and indirectly, but perhaps more importantly, from having better access to legal information for community participation in problem solving.⁹

Clinical legal education covers many lawyering skills; as such, no one skill can be taught in the classroom component of a clinical course to the extent it might be covered elsewhere in the curriculum. Drawing from components in advanced legal research courses and other similar research instruction programs that are most applicable to the clinical experience and adapting the content and instruction method to meet the clinic's specific teaching needs makes the most sense. The aim is to quickly bring the students' research competencies in line with the clinic's requirements quickly to allow sufficient time for teaching and practicing other clinical skills.¹⁰

Part II presents mold litigation as an example of researching novelty. Providing a practitioner research framework, this example of a rapidly emerging practice area scans legal research, interdisciplinary and expert resources and techniques students can enlist when researching other novel situations in practice. The case study highlights clinical pedagogy and advanced research instruction connections; still it barely scratches the surface of the research skills and resources new lawyers must possess and access. Part III attributes modern law practice research complexities in part to expanding boundaries of legal, interdisciplinary, and audience authority. Varied and unpredictable authority expectations (of judges and assigning attorneys), combined with unwritten laws and local legal customs that alter standard authority requirements, create a practitioner research environment that is far more complex than most law students expect.

In Part IV, the focus shifts from transition issues affecting new lawyers generally to specific research conditions challenging public interest lawyers and their clients. Public interest lawyers need to understand the impact of limited citation rules and practices and recent federal legislation limiting regulatory rulemaking consideration of scientific studies. Clients and communities that clinics typically serve may be prevented from reaping the full benefits of their lawyers' research because of these information limiting rules and practices. Community/lawyer information partnerships espoused in collaborative lawyering are also at risk because of these conditions. Greater public interest awareness of inequitable citation rules and information practices will hopefully spur further reform already underway.¹¹

Advanced legal research courses offer law students the most concentrated curricular exposure to practitioner research. This instruction, in modified form, would be valuable in many clinical courses. Part V. describes advanced legal research instruction methods that have much in common with clinical teaching practices and objectives. Practitioner resources can be taught through a combination of lecture (minimal), hands-on practice (extensive) and support tools accommodating different learning styles. Research simulations give students experience in assessing client problems, formulating research plans, analyzing results, and recommending courses of action. Collaborative assignments and group exercises teach students that practitioner research (at least the end product) is rarely a solitary activity. Consulting with more knowledgeable and experienced colleagues, brainstorming and sharing information and research with practice groups and team members, and researching discrete pieces of a large group project are important collaborative aspects of practitioner research.

Hopefully this article will encourage creative and innovative research instruction collaborations enriching the clinical curriculum with new opportunities for students to learn about and experience practitioner research. The appendices provide some of the raw teaching materials, including a sample research instruction module for clinics.

II. Researching Novelty

Researching novelty is a hallmark of professional practice: "As the corpus of knowledge grows, members of a profession commit general principles to memory and conduct research when necessary to inform themselves about specialized or unusual cases."¹² Online research allows practitioners in any locale to keep abreast of cutting-edge legal developments, making novelty less forbidding and more adaptable to local practice. Practitioners increasingly rely on the Internet for fact-finding and legal information. Although conducting in-depth legal research on the Internet pales in comparison to searching commercial legal databases (Lexis and Westlaw), it has become an invaluable source of legal information for legal professionals and laypersons.¹³ The Internet has brought significant pieces of legal information to the attorneys' desktop from court dockets and pleadings to extensive coverage of current federal and state legislation and regulations. Through government, law school, law firm, bar association, and public interest web sites, it provides hard to find information needed in routine and specialized cases.¹⁴ Commercial legal databases affordable¹⁵ to public interest lawyers support legal research well beyond the Internet's current reach. Law students, despite having virtually unlimited access to these databases, rarely graduate versed in the many specialized practitioner research materials that are crucial for researching novelty.

A multi-faceted, habitability problem borrowed from the clinical literature suggests opportunities for enriching the clinical curriculum with litigation research methods taught in advanced legal research courses:

Meanwhile the sessions on habitability heated up. Because of the building's disrepair, many of the tenants were living in apartments with water coming in during the rainy season. As a result of the moisture, paint was peeling and many tenants suffered health impairments from mildew and mold exposure.¹⁶

When the article containing this account was published in 2000, mold litigation was in its genesis. Soon thereafter, mold litigation evolved into a highly specialized practice area perhaps best described as a hybrid of toxic torts and construction law.¹⁷ Its founders paved the way for a new cause of action for pervasive and persistent mold problems causing property damage and personal injury in homes, schools and government buildings.

For law students to truly become educated researchers they must know how to track new legal developments and emerging areas of the law so that they may provide additional remedies or options for their clients.¹⁸ Teaching students how to draw on the expertise and resources of specialists (in the case of mold litigation—attorneys, toxicologists, epidemiologists, and remediation experts) prepares students to stay on top of new legal theories and causes of actions.¹⁹ In the mold problem scenario (and by extension to any new and rapidly developing area of the law of potential interest), the type of research described below would be essential, because traditional legal research avenues (treatises, law reviews, legal encyclopedias, digests, ALR, etc.) often lag as the story unfolds.²⁰

A. Mold Litigation Case Study

Assume a low-income homeowner with serious health...