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legal research skills: How competent are Our lawyers?

Shaikh Mohamed Noordin*

The most vociferous criticism expressed by any Malaysian judge on the deteriorating quality and competency of lawyers came last year from the Ipoh High Court judge Datuk VT Singham while admitting chambering students.� He said that the court regretfully noted that many who came before his court were not very serious in carrying out their duties. While presiding over cases in Ipoh High Court, he highlighted concerns over lawyers who failed to present adequate submissions, resulting in judges having to do their own research.

In response to the judge’s criticism, the Bar Council plans to introduce a compulsory programme called the Continuing Legal Education to improve the competency of lawyers in various areas including legal research skills. The ability to conduct legal research is one of the many essential skills that a lawyer needs, regardless of the area or type of practice.

The purpose of legal research is not just to find the best possible precedents or authorities to support a legal argument. Legal research serves a wider purpose, which includes locating relevant authorities in statutes, case law or other primary legal sources in relation to a particular issue. Based on that research, they will be able to weigh the likely outcome of a case and determine the amount to claim based on precedents of the past. This is however, far more difficult than it sounds. The lawyers have to consider:

• Whether the issues are correctly identified or missed altogether. The issue of identification is crucial for effective research.

• The law is constantly changing. New precedents over-rule old cases. A split decision of the Federal Court makes it even more difficult to determine how the next case will be decided.

• The dates of coming into force of particular sections of an Act may differ from the rest of the sections. Although royal assent may have been granted, some Acts may not automatically be in force and may gain retrospective enforcement date after a long gap between the Gazette date and the date of coming into force.�

* Managing Librarian Tay & Partners, a member of the American Association of Law Librarians (AALL) (2000).

1 “Judge VT Singham Slams Poor Calibre of Lawyers”, The New Straits Times, July 20, 2007. 2 Abdul Malik Ishak J has withdrawn his first judgment in the case of Tan Guek Tian and

Anor v Tan Kim Kiat @ Chua Kim Kiat [2007] 3 AMR 758; [2007] 3 MLJ 521; [2007] 8 CLJ 215, rendered on January 10, 2007, after realising that the main Act referred to in the case, the Mental Health Act 2001 (Act 615) had not come into force at that time, though it was enacted as far back as �00�. See Tan Guek Tian & Anor v Tan Kim Kiat @ Chua Kim Kiat (No 2) [�007] 5 AMR 136; [2007] 9 CLJ 215.

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• In many areas, there are conflicting decisions or no binding authority. Researchers must then research the law of other jurisdictions and apply creative analysis to the existing case law or create an argument based on the doctrine of stare decisis.3

Why do legal research?

Research is an important element in legal practice. Lawyers are expected to perform research to an acceptable standard as a competent practitioner. Lawyers are responsible for uncovering as many legal authorities as possible to convince the judges. Citations to authorities enable lawyers to point out the relevant law for the judges to affirm that what the lawyers allege is the applicable law. For familiar cases, the judge probably already knows the law well, but citations to authorities are still needed. However, in obscure cases, the judge will need the lawyer to explain the applicable law, therefore, citations to statutes and cases are essential for this purpose. If there is no case on point in the jurisdiction, one will need to:

• find a case on point in a foreign jurisdiction. English cases are likely to be preferred, even Commonwealth (Australia, New Zealand, Singapore, India and Canada) cases may be considered due to the similar legal system and historical background;

• find cases on analogous issues and make a novel argument;

• argue from basic principles, such as the Federal and State constitutions, maxim of equity, and rules in the Restatements of the Law. Some judges are even willing to make new rulings by following persuasive authorities that are cited to them in court submissions.

complexity of legal research

Legal research can prove to be difficult and frustrating particularly without a proper understanding of the hierarchical structure of legal resources. Law resources are categorised in a complicated manner which can be quite puzzling to many. Law is document-intensive, the constantly increasing quantity of legal material and the growing interdisciplinary nature of legal research do not make it easier. The result is an ever-expanding core collection for the lawyer to consult with.

The process of finding, selecting and evaluating these precedents is a laborious task and demands good legal research skills from the lawyer as precedents vary in their legal vitality or the extent to which they maintain legal relevance, authority and applicability. Some precedents are more legally relevant and authoritative than others. The choice of precedent to use therefore is also of prime importance. Although there are more tools, such as new indices and

3 Best, Catherine P, Best Guide to Canadian Legal Research, http://legalresearch.org/Default.htm.

���Legal Research Skills: How Competent are Our Lawyers?

citators, for conducting legal research than before, the research task has become harder rather than easier. There are more bases to cover:

• The law of other jurisdictions must often be researched.

• Computer research has introduced the need to be completely current, and require new competency.

• There has been a dramatic increase in the volume of Malaysian case law and statutory material.

• Secondary sources have grown exponentially.�

In Malaysia, the reliance on common law began to change dramatically as the legislature began to codify rules into statutes. Almost all areas of law are now legislated in written form. Despite an increased emphasis on formal legislation, such legislation however still needs clarification and interpretation by the court as to the application of the law. Hence, judicial decisions will continue to increase the source of law in Malaysia. Lawyers must always be certain and sure about the validity of the legislation before using them as legal authorities.

Thus, as sources of “the law” abound, law students must realise that the present Malaysian law is a combination of resources from various legal entities and hierarchy of authorities, all affecting different levels of jurisdiction and people, published in assorted formats with different terminology to suit each instance. Most importantly, all are in force for and from various periods of time, some of which may or may not be applicable today. Some may not be applicable today but apply to the facts of a circumstance at the particular time the law was in force.

One fundamental error many law students make is to assume that the law and legal process are static concepts. Lawyers and judges may call upon a variety of sources of law in order to mount their legal arguments, and the numerous sources from which the law is derived are subject to interpretation. Clearly they need to be familiar with the various sources of law and how they are organised in the books and the libraries, but that’s not all. They would also need to formulate research strategies to describe which source, of several sources, they should consult. In brief, research is the continuous repetition of search. There are many ways of doing legal research, but the key is being knowledgeable about the sources available in order to be able to use the relevant sources efficiently and effectively to retrieve the relevant law. Understanding the ins and outs of legal research, however, can take years but learning good legal research skills is one of the best ways to avoid being trapped in embarrassing mistakes.

� Ibid.

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standard of legal research required

The concept of legal research malpractice and the extent to which a lawyer has adequately carried out legal research are rarely discussed in Malaysia, although there have been several occasions where the topic has been raised.� Perhaps the most significant one was in the Malaysian Academy of Law Bill �00�6 which states that one of the functions of the Academy is to promote legal research in the profession.7

However, there are cases to mark the importance of legal research in legal practice in foreign cases. West Group has created a key number under the topic “attorney-client” specifically to indicate cases where the failure to perform sufficient legal research during the representation was ground for complaint. According to Best,8 there are quite a number of Canadian cases prescribing how the courts have set the standards of legal research expected of counsel appearing before them. For example, in Lougheed Enterprises Ltd v Armbruster,9 the court held that counsel has a duty to be aware of all cases on point decided within the judicial hierarchy on which the case might turn and refer them to the court. The court noted that “on point” does not mean cases whose resemblance to the case before the court is in the facts. It means cases which decide on the same point of law. One may think that one can justify for not referring to a binding decision because it is distinguishable on its facts. However, such a determination is for the court to make, not the counsel.

The court in Lougheed v Armbruster,�0 held that:

• Counsel cannot discharge his duty by not bothering to determine whether there is a relevant authority. Ignorance is no excuse.

• The duty to the court does not go as far as the duty to one’s client to be persuasive, which often requires counsel to produce authorities outside the hierarchy of British Columbia.

5 “Attorney-General of Malaysia, Dato’ Abdul Gani Patail has Urged Malaysian Lawyers to Strike a Balance between Technology and Traditional Ways of Conducting Legal Research”, The New Straits Times, March ��, �00�.

6 Malaysian Academy of Law Bill 2002, cl � (1)(c), Functions of Academy. 7 Hong, Carolyn, “Law Academy to Focus on Research: the Proposed Academy of Law will

Focus on Promoting Legal Research and be a Forum for Exchanging Ideas between the Different Sections of the Legal Profession. Minister in the Prime Minister’s Department Datuk Dr Rais Yatim said the Academy would also Help Maintain and Promote High Standards of Conduct in the Profession”, The New Straits Times, June 11, 2001.

8 Ms Best is a research lawyer with the law firm of Boughton in Vancouver, British Columbia and is an Adjunct Professor with the Faculty of Law at the University of British Columbia.

9 (1992) 63 BCLR (2d) 316 (CA), http://legalresearch.org/docs/armbruster.html. �0 [�99�] � WWR 6�7, http://legalresearch.org/docs/armbruster.html

123Legal Research Skills: How Competent are Our Lawyers?

• Counsel is not expected to search out unreported cases, however if counsel knows of an unreported case on point, he must bring it to the court's attention.

Failure to conduct proper research can have devastating consequences. In another Canadian case, World Wide Treasure Adventures Inc v Trivia Games Inc,�� counsel applied for an injunction without first understanding or researching the applicable law. Gibbs J ruled that counsel had been negligent in the performance of his duty and awarded solicitor-client costs against counsel personally. The amount of the taxed bill of costs was significant.

Perhaps the strongest criticism of a counsel’s failure to conduct research was levelled in Gibb v Jiwan�� by Ferguson J. The case involved a dispute over priority to claims against land registered under the Ontario Land Titles Act. After deciding the point of law, Mr Justice Ferguson commented extensively on the failure of counsel to conduct adequate research, noting the professional obligation of a counsel:

• to be competent,

• to keep abreast of developments in their own area of practice,

• to give their clients advice based on an adequate consideration of the applicable law,

• to inform the court of relevant material authorities regardless of whether they support or contradict the position that counsel is advocating.

He ordered both counsels to deliver a copy of his comments to their clients.

In Central & Eastern Trust Co v Rafuse,13 the Supreme Court of Canada ruled that:

A solicitor is not required to know all the law applicable to the performance of a particular legal service in the sense that he must carry it around with him as part of his “working knowledge”, without the need of further research, but he must have a sufficient knowledge of the fundamental issues or principles of law applicable to the particular work he has undertaken to enable him to perceive the need to ascertain the law on relevant points...and to discover those additional rules of law which, although not commonly known, may readily be found by standard research techniques.

A litigator who did not conduct sufficient research thus faces the possibility of being sued by his client and also of censure by the court through an award

�� (1987) 16 BCLR 135 (SC), http://legalresearch.org/docs/trivia.html. �� [1996] OJ No 1370 [QL] (Ont Gen Div), http://legalresearch.org/docs/gibb.html. 13 (1986) 31 DLR (�th) �81 (SCC), 52�, http://scc.lexum.umontreal.ca/en/1986/1986rcs2-147/1986rcs2-

147.pdf.

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of costs. For a solicitor, failure to understand the law or conduct the research necessary to gain an understanding of it will result in personal liability to the client.

Possible causes of deficiency in legal research skills

Although many in the profession recognise the need of legal research in their practice, some universities in Malaysia are still not quick enough to address these needs by offering optimal legal research skills to their students. It is not known how comprehensive legal research training has been conducted in our universities and which universities are doing it. So far, there is no formal survey to evaluate how legal research is taught in our universities or private colleges. Some public universities�� are known for offering legal research skills for their first-year law students under their information literacy programmes. But similar programmes are hardly heard of in the private colleges.��

It is however quite understandable why legal research is given less priority as compared to other crucial subjects in the compact scheduled programmes of the universities. On the other hand, students are not required to immediately apply the research techniques taught during the first-year course, they are unlikely to retain the knowledge for very long without putting it into practice, which may become obsolete when it comes to practice.�6

Feedback from our graduates and law firm librarians confirmed that the need for legal research skills is quite pressing. Research in the academic setting is presented in an unproblematic manner and neatly packaged. Problems are usually predefined and therefore always likely to have an answer. Most of the students admit to being spoon-fed and as such, are not familiar to conducting research efficiently and quickly. Therefore, students and graduates appear to be lacking familiarity with the purpose and application of the research tools.

We need to closely examine the “possible causes” that have contributed to the inability to carry out effective legal research by a significant number of our students. Are legal research classes too bibliographical as opposed to process oriented? Are legal research classes given too early or too late or too infrequently? Are students given insufficient opportunities to use research tools

�� University of Malaya, International Islamic University of Malaysia and Universiti Kebangsaan Malaysia.

�� Practitioners in public and private sectors rarely have the opportunities to attend such courses. The last Legal Information Research course for public service officials was conducted by the Judicial and Legal Institute (ILKAP) from December 1–2, 200�, see ILKAP Training Calendar 200�. Bar Council Library conducted only one similar programme throughout the year of 2005 for practitioners in the private sector namely “Legal Research Skills” on September 28, 2005.

�6 Hemmens, Ann E, “The Current Status of Advanced Legal Research Instruction: a Survey of ABA-Accredited Law Schools”, April 2000 (a Master paper submitted to the faculty of the School of Information and Library Science of the University of North Carolina, USA).

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during the course? Are students placing too much reliance on compilations of printed materials and casebooks thereby failing to use sources necessary for finding and updating primary material? Is it due to the lack of a structured course or lack of a compulsory and assessed legal research methods course as part of the curriculum?�7

Legal research in the law firm culture

Moving into practice involves developing different research skills to those required in the academic field and using some sources previously not available. At university, legal research is taught on how to find the law through bibliographical understanding that may consist of giving a description of the books, how and when to use them but rarely on investigating the facts of a case to determine what principles of law may apply. Fact investigation skills may be somewhat limited or unexplored.

In practice, lawyers are expected to learn how to apply the law and solve a real problem with a narrow focus to answer specific questions for a client. Lawyers make heavy use of specialist practitioner texts for practical and procedural issues in their research, which are rarely used in the academic environment. Also, lawyers rely heavily on up-to-date primary sources, cases and legislative material, always monitoring and tracking developments in order to provide accurate advice.

Yet, many lawyers perceive legal research as a scholarly activity, unlike the practice of law. Someone who is good at courtroom presentations such as cross-examination, objection that preserves the right to appeal, making a convincing presentation to the jury, etc. and good at deposition may not necessarily be equipped with good legal research skills. Similarly, someone who has good interpersonal skills, such as acquiring clients, ability to interview, counsel or negotiate, may not necessarily be good at legal research. Only a small number of lawyers genuinely enjoy doing legal research. Most lawyers seem to regard legal research as a chore to be delegated to pupils18 and a junior colleague. The problem is that the delegators, usually the senior lawyers, in escaping from the task of legal research may lose out on the new knowledge and proper experience to do a good research, especially for a case involving complex or novel legal issues.

Why did legal research get its reputation amongst practising lawyers as a chore to be delegated to lower-level staff? Traditional legal research involves searching through books such as legal digests, citators, legal encyclopaedias, etc. in a law library, and it can be very tedious. It is easy to understand why practising lawyers want to avoid such work.

�7 Kinder, Petal, Taught but not Trained: Bridging the Gap in Legal Research, http://138.25.65.50/au/special/alta/alta95/kinder.html.

18 Usual term used for fresh graduates undergoing training prior to being called to the Bar.

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Modern legal research involves the use of online databases and the developing of strategies for the usage of those databases. Many practising lawyers are not very comfortable sitting at a computer terminal searching for cases and statutes for hours. Additionally, paying for online databases per search or per hour can be exorbitant, up to RM�,000 in expenses for searches for one case in well-known sophisticated legal databases. For these reasons, there exists a culture amongst lawyers that legal research is a chore to be delegated to the lower-paid staff such as pupils and young associates as it is not a proper activity for highly-paid partners.

When legal research is routinely delegated to people with lower status, it is a signal that senior lawyers regard legal research as relatively unimportant. As a consequence, clients may suffer from less effective outcomes.�9

Vicarious liability—is the librarian partly liable?

As one who has no qualifications whatsoever in librarianship, I have to say that the debate as to what qualification(s) is/are necessary before one can use the title “librarian” is most amusing. The essence of a “profession” is that it has “agreed” and “accepted” entry requirements. Even the most brilliant legal academic is not entitled, at least in this country, to the title of “Advocate and Solicitor” if he/she has not passed the various exams necessary for that title. And the notion that anyone who does a particular job in a professional manner is ipso facto a “professional”, which some contributors on this topic have been asserting, is patent nonsense. For instance, when your piano is being repaired, the job may have been done “professionally”, but no one that we know would dream of calling a piano repairer a member of a “profession”. A skilled tradesman no doubt is not a professional. It is also of the essence that a “profession” has the power and/or duty to discipline members who breach its ethical codes of conduct and expected standards of competence. Who “disciplines” your piano-repairer if he ruins your piano? No one. You simply sue him for negligence/breach of contract. Similarly, if someone who believes herself or himself to have the skills of a librarian is entitled to assume the title of a “professional”, what professional body has the required disciplinary authority? For instance, when you do legal research and other work of a type that is very similar to that done by many law librarians every day, will you be regarded as a law librarian? Of course you are not.

What makes someone a professional? What makes an occupational group, professionals? Is librarianship a real profession? Is there a contract between librarians and society? Professions such as lawyers, engineers, doctors and increasingly accountants have that contract codified in many countries. The case of librarianship is not so clear. Certainly, the contract with society, if one exists, is not codified into law. Negligence in providing up-to-date information

�9 Standler, Ronald B, “Why do Legal Research” (2005), http://www.rbs2.com/legres.pdf.

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is not, normally, a criminal matter but it could and has been handled in civil proceedings. As to who may be categorised as a qualified professional law librarian, this would be difficult to describe as there are no qualifications or special training offered by tertiary institutions in Malaysia for someone who is interested in such a profession. What is available is merely a general degree in librarianship, and it is often the case in Malaysia that a law librarian’s qualification is gained in the day-to-day running of a law library. Therefore, there is no official accreditation in recognising a special qualification in law librarianship. In terms of certification, the closest they have is the recognition by the librarians association�0 that one is a professional member, especially for those who have earned a degree in librarianship.

Law firm librarians however, are the only employees of a law firm who have a professional duty and assignment to assist both staff and lawyers in finding legal information. They are responsible for bridging the gap between the sources of information and those who need access to it. As information managers, they are also responsible for managing information resources and delivering them in good order to the lawyers. The core activities of librarians are aimed at assisting research, creating current awareness and training in legal information searching, thus librarians are largely involved in the process of legal research, which entails information retrieval. They are expected to be well-versed in the techniques of finding information as they are professionally required to master legal bibliography, update legal resources, create indices and understand research tools to help ease the research process.

Librarians can be regarded as part of the professional team and have a duty to ensure the firm’s clients are served diligently on behalf of the lawyers. Therefore, a firm librarian assisting in the research on a case would have a duty to the firm, the lawyer and the client to ensure that a reasonable standard of care is met. Hence, a librarian could probably be named in a negligence suit as they may have contributed to a negligent treatment of a case. In Union Insurance Malaysia Sdn Bhd v Chan You Young,�� Syed Ahmad Helmy JC, quoting English cases that lawyers should ask an expert to assist them in legal research, said:

In both R v Reubens and R v Sabaroche, reference was made to R v Legal Aid Board, ex parte Bruce [1992] 1 All ER 133; [1991] 1 WLR 1231 and a passage in the judgment of the former Master of the Rolls at p 1237 where he said:

“ Solicitors, like barristers and judges, are not expected to carry a knowledge of all the law in their heads. They have to consider rules, regulations, textbooks and authorities or get others to undertake research for them. If the problem is difficult or outside the scope of their experience, they

�0 Persatuan Pustakawan Malaysia (PPM) �� [2003] 3 MLJ �8�.

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will wish to discuss it with others who are more qualified (whether professionally or otherwise) and in some circumstances may have to remunerate those whom they consult.”

If the firm librarian has been held out and fitted as an expert (whether professionally or otherwise) as implied in the case, then there is a higher duty put upon the librarian to perform the reasonable standard of an expert researcher. Lawyers have in the past been found negligent due to lack of research efforts. This form of negligence can be extended to the firm librarian who should be the most conversant in legal research methods. If a lawyer has depended upon the librarian for his or her research expertise, then that librarian has a duty of care to meet.

Although by virtue of vicarious liability the burden may rest on the firm, this would not prevent the client from naming the librarian in a negligence suit. While employers may be liable for torts committed by employees or agents during the course of their employment, the librarian has been charged with the duty to assist and provide information (not advice) and there is an implied obligation to fulfil that duty to a standard of reasonable care and due diligence. Failure to do so may cause a librarian to be held individually liable for his or her negligence. There is a common law duty of care to the firm and its lawyers which arises independent of the contract with the client and therefore the librarian can be held personally responsible. An individual employee can come under the Hedley Byrne v Heller & Partners Ltd�� principle of a duty to exercise care given the particular relationship, the assumption of responsibility and the reliance upon that individual to perform with due diligence. Therefore, an individual may not escape liability by hiding behind his or her employers’ professional obligations. However, the employer also ought to consider the lack and inadequate privileges extended to their librarians as compared to their lawyers in term of remuneration, status and professional protection when holding them equally liable for professional negligence.

conclusion

Law students and lawyers should regard legal research as a skill that requires life-long learning. Many Bar Associations around the globe require their lawyers to give clients competent representation.23 The librarians themselves should also appreciate the importance of legal research to the lawyers and offer their expertise to help lawyers deliver competent legal service. Law librarians need to have adequate knowledge in legal research to enable them to teach and

�� [1963] 2 All ER 575; [1963] AC �65. 23 The expectation that lawyers perform adequate research on behalf of their clients is stated

in the American Bar Association (ABA) Model Rules of Professional Conduct. Rule 1.1 (“Competence”) states: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”

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train other researchers who may be lawyers, law students, librarians or the general public. The best and perhaps the only way to really promote librarians as the experts in teaching legal research is for the librarians to get out there and show what they can do. The recent statement issued by the American Association of Law Libraries (AALL) on the value added to organisations by law librarians, described librarians as teachers and trainers who can add value to the organisations and communities to which they belong by teaching others how to choose and use information resources and technology to gain maximum benefit. Malaysian law librarians can play a significant role in legal research training because of their long involvement in this area. They should now be ready to take up the challenge in playing a greater role as teachers and trainers in this prestigious profession.

references

1. Anspanch, Judith, “Report of the AALL Special Committee to Promote Law Librarians as Legal Research Trainers” (May 1, 2002), http://www.aallnet.org/committee/promote_report.asp (accessed on April 23, 2008).

2. Best, Catherine P, “Importance of Legal Research: Legal Research is Essential Lawyering Skill”, Best Guide to Canadian Legal Research, http://www.legalresearch.org/docs/process1.html (accessed on April 23, 2008).

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10. Hazelton, Penny A, “And Just Why We Teach Secondary Materials First?”, http://lib.law.washington.edu/hazelton/article-2ndaryMats1st.doc (accessed on April 23, 2008).

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13. Keefee, Thomas, “Teaching Legal Research from the Inside Out”, Law Library Journal, Vol 91:1, pp 117–131, http://www.aallnet.org/products/pub_llj_v97n01/2005-06.pdf#search=’The%20Teaching%20of%20Legal%20Research.

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17. Noor Aziah Mohd Awal, “Legal Education in Malaysia: Where is it Heading?”, http://www.aals.org/international2004/Papers/Awal.pdf

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131Legal Research Skills: How Competent are Our Lawyers?

23. Robyn Carroll, Robyn, Johnston, Sheelagh and Thompson, Eileen, “Information Literacy and Legal Research Skills Education in the UWA Bachelor of Laws Degree”, http://lsn.curtin.edu.au/tlf/tlf2001/carroll.html (accessed on April 23, 2008).

2�. Sabis, Christopher, “Understanding the ‘Knowledge’ Requirement of Attorney Competence: A Roadmap for Novice Attorneys”, Georgetown University Law Center (Summer 2002).

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29. Tjaden, Ted, “The Paradox of Legal Research and Writing in Law School: Ignoring its Importance at Our Peril”, prepared for CALT Conference in Vancouver (June 22-2�, 2005), http://www.acpd-calt.org/shared_docs/2005_tjaden.pdf.