Legal research: digging deeper

Chapter 4


Legal research: digging
deeper



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4.1 INTRODUCTION


Despite its desperately unsexy image, learning to carry out research well is one of those skills that will continue to reap you rewards right through your professional working life. As a student, being able to find good quality, relevant materials will prove indispensable for your tutorial preparation, your assessments, mooting and even interviews. As a lawyer in practice, finding sources to back up the substance of your argument is key. For the trainee or pupil barrister, research tasks will be set regularly and this is an ideal way to impress. However for many, this is the skill they struggle with, and frantically grappling with unfamiliar practitioner texts while finding thousands of hits in Lexis can be an isolating and lonely place to be.


While this chapter’s aim is to ensure you feel more confident using the sources that should form your armoury, it’s worth pointing out early on that you don’t need to feel worried or daunted by all this. Law librarians can be found in most law school libraries and, if you’re studying in London, also in the libraries of the Inns of Court and the Institute of Advanced Legal Studies. Librarians are blessed with expertise in carrying out legal research (obviously!) twinned with a desire to help others. Note, however, that this isn’t about them doing your research for you, but guiding you to the right source for the job and showing you the techniques that make finding something useful more likely. Remember, many will have a law degree as well as years of experience in law firm and academic libraries.


One of the things people find frustrating about research of any type is that there isn’t always a ‘perfect answer’ out there to find. Those moments where fireworks explode in your head and you have to resist air punching while shouting, ‘Get in!’ in the silent space of your law library, are not as common as you might hope. As a student, those frustrating moot problems or assessed problem questions are written specifically to make research tricky – clear-cut answers will elude you … this is the point! What is fantastic, however, is that the tools you have at your disposal make the research process far less painful than it was for those digitally starved law students of even 15 years ago.


4.2 WHAT WILL YOU BE LOOKING FOR?


As a law student, the majority of the time you spend researching will be spent looking for cases. However you will also want to track down legislation (statutes, statutory instruments and European regulations and directives) and commentary (opinions and reflections) via journal articles and books.


You will also be interested in official reports that might emerge from various government departments or from Parliament. There will be certain organisations that will be of use, for example the Law Commission, who deal with reform of the law in the UK. They produce consultation papers and reports, which will be key to understanding how a law developed and the public feeling around this. It’s worth remembering that even just the humble book can come in a variety of forms – each useful for a different purpose:


Textbooks – the books you use to gain a comprehensive understanding of the law in a particular area. These are usually quite hefty volumes and your lecturers will offer some recommendations.


Cases and materials – these books contain relevant excerpts of relevant cases, legislation and journal articles.


Statute books – compilations of relevant statutes in different areas of law.


Monographs – shorter books that go further than just stating the law. Ideal for those who want an understanding around the complexities and debate of a very specific area of the subject.


Practitioner text – as the name suggests, these are used by those in practice. They are very thick, expensive leather-bound volumes on a specific area of the law, and act as ‘the Bible’ for practitioners in that area. Examples include Chitty on Contract, Clerk & Lindsell on Torts, Archbold for crime. Good for finding succinct detail and signposting to key authorities.


Remember, when reading a book, the unassuming footnotes are worth reading carefully – they will offer other great leads to sources that might shed more light.



THE EVERLASTING BOOK?


You will sometimes come across books where there is someone’s name in the title but the author is completely different. Often in law, books go through multiple editions – the original text may have been written 60 years ago and it might be on the fifteenth edition. What changes is that often the original author’s name will become part of the title and the writer who takes on the updating will be the author.


You will probably come across Smith and Hogan’s Criminal Law – the current author is David Ormerod, but the original author back in 1965 was J.C. Smith, who was joined by Brian Hogan for the second edition.


Each piece of work you submit as a student will be marked on the basis of a number of assessment criteria – research will always form part of this. Your lecturer needs to see that you have used sources of quality to back up your own work. Every proposition you make needs an authority to lend it weight. The sources you select will tell your lecturer a great deal about the work you have done.


4.3 BOOKS ON THE SHELF OR ONLINE?


Legal research is no longer something that happens solely when holed up inside a library, flicking through dusty volumes. However, neither is it something you can do exclusively on your trusty laptop; not everything is online yet. You need to have an understanding of both routes and to know when each is appropriate, something that only comes with practice.



TOP TIP


As soon as you start at law school make it a priority to have a wander round the library – work out where all the materials are for your first year subjects, and practice using the library catalogue. It is far better to do this when you don’t have the added pressure of an assessment to do. Talk to your librarian!


How a resource is made available (hard copy or online) will be dependent on your university library’s collection management policies and budgets. Some titles may be available on the shelf at one university but online at another, for the really lucky students you’ll have the choice of both formats. Everyone has a preference and although many like to look at cases online, there are those who feel they can only really take in a judgment if they are looking at the printed source. E-books still have a way to go before they become as desirable as those on the shelf.


You may be surprised to learn just how expensive legal resources are – a practitioner text can be anything from £450–£700, with the online version no cheaper. Legal databases cost many thousands of pounds annually. Libraries clearly wouldn’t pay this unless it was completely necessary, which should indicate how essential it is that you exploit these resources as much as possible. Legal information is very expensive indeed and recent years have seen many changes. You will always have to go beyond your favourite online source because different publishers own different content, so you need to be open to this. Smaller publishers who used to allow their content to be displayed on Lexis or Westlaw withdrew it as soon as they could develop their own platforms. This makes it trickier for consumers – the law students, academics and practitioners – as they need to learn the tricks and tips of each individual resource.


4.4 USING GOOGLE AND FREE RESOURCES


‘Research’ at college or sixth form doesn’t really happen – most of the material students put into coursework will come from in-class materials or be plucked from the web, usually via a cursory search on a search engine like Google. So it can be quite a challenge to curtail reliance on this, or understand why your methods have to change.


Google is great as long as you understand its limitations – we use it all the time to find stuff – looking at the last 24 hours of our search history as we write this shows us looking for inspiration for unusual wedding gifts, an instruction manual for a new camera and recommendations for books about Australia (holiday coming up!). We do search for law-related information too, although it’s more typical that we’ll know what we want and where we shall find it.


Wikipedia has dug us out of many a hole when it comes to needing a bit of information at our fingertips – let’s face it, it’s the first port of call for most. However it should just be the beginning of a research journey and one that you should treat sceptically. This is a website edited by the community – you may have written some Wikipedia content yourself? Do you feel happy about depending on information that could have been written anytime, by anyone? If you’re relying upon a source in your written work, you need to be able to trust it.


There are risks associated with looking for information freely available online but as long as you are always wise to them, then doing your legal research via a combination of subscription databases and the free sources online should work well. So what are the risks?


Authority – if you find something freely online, how do you know if you can trust it? Remember, any idiot can post their pearls of wisdom (believe us, we’ve done it!), you need to be sure of their credentials, particularly before you merrily add a quote from them in your latest essay.


Bias – as above really … anyone can post and you need to be sure of his or her motivation. Sometimes even quite ‘official-looking’ sites can be as flaky as an almond croissant. Keep a close eye on sites of pressure groups – googling will often take you to pages of statistics or policy documents, make sure these are from an organisation that you know is trustworthy, and not from a random group with an axe to grind.


Quality – if you’re looking for commentary (someone’s opinion on a judgment or the application of a particular section of an Act for example), then it can be very tempting to tap a few search terms into Google in the hope of finding something that is easy to understand. However, you have to be able to judge whether it is of sufficient quality. Your library will subscribe to legal journals, loads of them, and it is here where you should be finding your commentary. For an article to be published in a journal it needs to go through the peer review process. This means that the first draft of an article will be submitted to the editor of the journal, who will then put it before the board to review its suitability for inclusion in an issue of that journal. They may accept it, reject it or make recommendations for revisions before looking at it again. Academics and researchers make their reputations on what they have published, so the more prestigious a journal, the tougher it is to get something accepted. So make sure you’re finding quality commentary online.


It is worth pointing out that there are now a number of excellent legal journals that publish solely online, and not in print. If in doubt look at the peer review process on their website, as well as the names of the Editorial Board, take the time to look up their credentials. Great online-only legal journals include the European Journal of Current Legal Issues (http://webjcli.org/).


Commentary can also found via blogs – and there are some incredible ones out there. A great all-round blog for keeping up to date with the human rights issues that permeate the subjects you study, is the UK Human Rights Blog from One Crown Office Row (http://ukhumanrightsblog.com/). More examples of excellent legal blogs will follow shortly. Again, it is a matter of common sense to ensure the site’s quality.


4.5 KEEPING UP TO DATE: CURRENT AWARENESS


Keeping track of new cases and the development of certain areas of the law, as well as careers-related information can be quite tough … there are so many places to look. However it’s pretty key. When you start going to interviews you’ll need to be on top of all the latest changes in the law and have formed an opinion on them. For essays and exams you can’t just rely on what comes in your module handbook and crops up in lectures and tutorials; finding those extra nuggets of information are what gain you decent marks.


There are a number of magazine-style journals that are worth checking out. The Student Law Review has a very useful section on recent developments (new cases, etc.), which it organises by subject area. This is only available in print, but your library should have it, but if not, the subscription fees are very low for students. For the legal profession, the Law Society’s Gazette, New Law Journal, Counsel or The Lawyer are useful publications. There are lots of student magazines that your law school will receive too – Lawyer2b and Young Lawyer are examples of these.


Online is where you will find the greatest selection however, whether it be websites or blogs or via social media. There are too many resources to add here – you might like to take a look at those listed on the Directory at lawbore.net. However, a few we would say are essential for any law student are as follows:



Halsbury’s Law Exchange – www.halsburyslawexchange.co.uk


Head of Legal – www.headoflegal.com


INFORRM Blog – http://inforrm.wordpress.com


Inner Temple Library Current Awareness – www.innertemplelibrary.com


Jack of Kent – http://jackofkent.com


Lawbore – http://lawbore.net


Legal Cheek – www.legalcheek.com


Pink Tape – www.pinktape.co.uk


Public Law for Everyone http://publiclawforeveryone.com


RightsInfo – http://rightsinfo.org


UK Constitutional Law Association – http://ukconstitutionallaw.org/blog


UK Human Rights Blog – http://ukhumanrightsblog.com


UKSC Blog – http://ukscblog.com


In terms of social media, Twitter is a must-do. So many lawyers and legal commentators use this to discuss, debate and even have some laughs along the way. We have found it hugely useful from a research point of view, discovering new resources and a wide range of views from which we can start to form our own. If a new judgment has just been handed down, Twitter will, within hours, have tweets with opinions, links to blog posts and related cases, the full text of the case and probably a difference of opinion being thrashed out too. There will often be a hashtag generated so that you can search effectively. It is a great learning tool. You do need to put the time in to find out who is worth ‘following’ of course.


4.6 LEGAL DATABASES

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