November 15, 2012

How Not To Do Legal Research

I like to work with other lawyers when the case warrants it. In fact, it's rare that I don't have a few cases in the office where I have co-counsel.

Normally, this is good because I get to see how others are handling the same issues I am. I get to learn what other people are doing and I have an opportunity to improve my game.

There are exceptions, though. Three times this calendar year, I've been working with a lawyer at another firm and I've stumbled upon an inexcusably lazy way to do legal research. More on that in a second.

Two trends in lawyer culture are mixing to create a storm of bad lawyering.

68915_law_education_series_1.jpgThe Rise Of Law-Related Stuff On The Internet

First, lawyers and law firms want to do well in search results. To do well in search results requires lawyers to generate content (formerly known as "writing"). Lawyers want to reach out to potential clients with news and information that's relevant to these potential clients.

As a result, lawyers are pumping out articles and blog posts and other marketing materials about how the law works.

On balance, I think this is good. Citizens ought to know how the law works. If a lawyer can't explain a concept in a blog post, she likely can't explain it in a client meeting either.

Yet now the internet is drowning in lawyer marketing material (also cat videos). Some of this material is really good. Some of it is questionable.

Little of it has the same rigor or analytical depth of a brief. Blog posts are rarely cite-checked. Marketing white-papers are not written to go to judges.

More importantly, just about every legal rule has some exception, or limit to its application. A marketing article isn't written to cover every nuance. It's written to get a potential to say "Hey, the person who wrote this knows sort of what she's talking about. I should call her."

That's a very narrow purpose.

The Rise of Google

The second trend creating a mass of bad lawyering is the rise of Google.

Everyone uses Google. I no longer know the local pizza delivery place's phone number, because I just Google it each time I need pizza. Google has become the place people go to for knowledge.

As a result, even good lawyers now routinely go to Google for the answer to a legal problem instead of Westlaw or Lexis. Heck, sometimes I'd rather use Google which is at my fingertips, than turn and reach two feet for a book.

The problem is with what you find when you Google.

If you need a cite, Googling "18 U.S.C. 2319" to get to the criminal copyright statute makes sense. Everyone understands that a statute is an accurate statement of the law. Sure, there may be some interpretation you want to look at from the case law, but if you just want the plain language of the statute, Google will get you there.

It's different, though, if the question is more nuanced. If you need to know how criminal copyright prosecutions work, Googling "criminal copyright" may, or may not, get you to something reliable (though it does get you to this kind of cool Maggie Gyllenhaal video called "Copyright Criminals").

Google is only as good as what it gets you. And these days, because of the rise of law firm marketing on the internet, Google is more likely to get you to some law firm's quick discussion of a topic as it is to get you to anything rigorous or reliable.

Law firm marketing material shows you the contours of what the law looks like, but it's nothing you'd want to lean on too heavily.

Google Is Not The End Of Legal Research

Which brings me back to where I started. Three times this year I've been working with other lawyers. We've been trying to figure out the answer to a subtle legal question.

Then, the other lawyer tells me that he or she has figured out the answer and sends me a link to a two-page marketing article from some law firm in, say, St. Louis.

This is not how legal research ought to be done.

Law firm marketing material is not meant to bear the weight of a case or a statute. I'm waiting to see a successful malpractice suit because a lawyer relied on some other lawyer's blog or webpage when giving advice to a client.

If you'd like to use Google as a way of starting real research into an issue - Googling to find a law firm marketing article about a topic, then look at the cases cited in the article - fine. But a lawyer is not done simply because Google sends back an answer from some yokel with a Wordpress blog.

For lawyers, who are chronically busy, sending in a Google search is a tempting prospect. But it's also insane. If you wouldn't cite it to a court, it isn't reliable as a part of a research project.

So, if you're reading my blog, The Federal Criminal Appeals Blog, and you think there's a statement of the law, please don't think that you've looked it up.

About This Blog

The Federal Criminal Appeals Blog is published by Kaiser, LeGrand & Dillon PLLC in Washington, DC. Kaiser, LeGrand & Dillon PLLC represent people who have been charged with federal crimes, are under federal investigation, or have a federal criminal appeal.

If you'd like to speak with us, please call (202) 640-2850. Odds are we'd love to talk to you.

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