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Legal Practice Course research skills: teaching competence or raising awareness?
Hugh Brayne,
Professor of Law and Head of Kingston Law School,formerly Director of Professional Legal Education, University of Northumbria at Newcastle
< h.brayne@kingston.ac.uk>
and
Peter Breakey
Senior Lecturer and Course Leader of the Part-Time Legal Practice Course, University of Northumbria at Newcastlec/o < Kelly.Wallace@unn.ac.uk>
Copyright © 1996 Hugh Brayne and Peter Breakey.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press
Ltd.
Summary
Contents
- What prior research experience do LPC students have?
- Should research be taught anyway?
- Do poor research skills pervade the profession?
- Progress?
- Has the LPC improved research skills?
- Teaching skills is difficult
- How should we approach the teaching of research?
- How could we inculcate a research culture?
- The Introductory programme
- The lecture
- 1: Not researching is not good enough (raising the level of anxiety)
- 2: Some basic tools (showing the way).
- 3. A case study (showing research skills in context).
- The research questions
- The research tasks
- Should tutors have to teach outside their own subject area?
- The difficulties in relying on answers prepared by one's colleagues!
- Evaluation of the programme - an initial questionnaire
- Evaluation of the programme - a follow-up questionnaire
- Conclusion
- Epilogue
- Appendix 1
- Appendix 2
What prior research experience do LPC students have?
LPC students usually arrive with either three or one year's study of law under their belts. In our view legal research ought to have been the common element underpinning their CPE or undergraduate studies and we hope that the review of legal education by the Lord Chancellor's Advisory Committee will lead to changes in this direction. At present however the research experience of LPC students is very variable and with many students it is best to assume no previous experience.Top | Contents | Bibliography
Should research be taught anyway?
Perhaps the idea of teaching the skill of research is a contradiction in terms. Perhaps the experience of previous generations, who taught themselves whilst in practice how to look things up, was good enough. As articled clerks and, before that, as students on the Part II and the Law Society Final courses respectively, we were both given little or no guidance on legal research. Perhaps it was assumed that we had learned these skills at the academic stage. Perhaps no thought was given to the subject at all. In any event, what we learned was self- taught. We tended to learn by trial and error and by watching others, copying their strengths but repeating their weaknesses.Top | Contents | Bibliography
Do poor research skills pervade the profession?
Neither of us is surprised, in the light of our own legal education and training, by the findings reported by the Consumers' Association in the October 1995 issue of Which? magazine, that 19 out of 20 solicitors failed to give best advice on a commonplace consumer problem These solicitors appear, according to the findings, to have been willing to give advice without researching it adequately. The Law Society's President described the findings as 'simply a publicity opportunity...rather than a serious attempt to look at service given by solicitors.'(Ames 1995). Regardless of whether or not he is right about the quality of the research findings, we think there may be a deeper problem which needs to be acknowledged. Is it surprising that practitioners have difficulty with research when, until the advent of the LPC, it had been unnecessary to demonstrate research skills before qualification? What was learned was at undergraduate level, generally in a non-practical context, or not at all.Top | Contents | Bibliography
Progress?
But here is the good news. The profession has, in theory, committed itself to the highest standards in legal research training for the next generation. Students on the LPC are required to demonstrate competence in legal research before obtaining the diploma which entitles them to start a training contract. On paper the requirements for competence are very high. The Law Society's written standards for research require that:
"The student should understand the need for thorough investigation of factual and legal issues and should understand the need for preparation and the best way to undertake it.The student should be able to:-
a) determine the objectives of the employer or client;
b) identify and analyse factual material;
c) identify the legal context in which factual issues arise;
d) identify sources for investigating relevant facts;
e) determine whether further facts are required;
f) identify and analyse legal issues;
g) apply relevant legal issues to facts;
h) relate the central legal and factual issues to each other;
i) identify the legal, factual and other issues presented by documents;
j) analyse a client's instructions and be able to identify the legal, factual and other issues presented by them;
k) present the results of research in a clear, useful and reliable form.The student should be able to demonstrate an understanding of:-
i) the use of primary and secondary texts;
ii) the methods of locating cases and statutes;
iii) the use of treatises, periodicals, digests, and standard practitioner texts;
iv) the uses of indexes and citators;
v) the use of computerised research."
Top | Contents | Bibliography
Has the LPC improved research skills?
It has been suggested however that the first two years' LPC students entering practice have not reached the high standard set. In 1995 Richard King, Chair of the Legal Education and Training Group, presented a paper on the subject to a Law Society workshop (1994). He reported that the profession, which recruits from the LPC, is finding three overall weaknesses in trainees:
"1. Trainees are weak at appreciating the need to convert the results of their legal research into practical solutions for clients....2. They do not exercise a degree of creativity in solving problems...Trainees too often display 'straight line thinking' which leads them into a blind alley. The development of lateral thinking, and more confident use of available materials, is a necessity.(2)
3. Occasionally, trainees do not get their research right. This is due to two failings:-
(a) The poor use of materials....
(b) Trainees occasionally fail to appreciate the importance of getting things right to a very high degree of specificity and detail." (King 1994)
King was speaking explicitly of students who had completed the LPC, students who had satisfied an examination board of their competence in the research standards set by the Law Society. Similarly Helena Twist of Nabarro Nathanson told an LPC conference in 1994 that she had found no difference between students coming into practice with an LPC qualification and their predecessors who had taken the Law Society Final examination. On this account students who had not been required to look anything up from one end of the course to the other (since the LSF gave students printed notes on all subjects) were no worse than those who had been taught and assessed in legal research. (At the conference to which Helena Twist spoke one of the authors challenged the LPC teachers present to state whether any student had been excluded from passing the course because of a failure in any of the five legal skills. No such students could be identified. Are the high standards being met by all students?)
The authors do not claim, at least in this paper, to know how to solve these perceived problems. High threshold standards in research have been set, and yet students who have passed the course have apparently arrived in practice without the skills which those standards aim at. Why might this be? Can anything be done? In 'Professional Skills for Lawyers' (Brayne & Grimes, 1994) one of the authors of this article attempts to set out a research methodology for students to follow. This book does not however address the question of how students who do not follow this, or any other methodology, can be taught and inspired to take research seriously.
Top | Contents | Bibliography
Teaching skills is difficult
Such problems are not confined to law-teaching. The following quotations are from Graham Gibbs, of the Oxford Centre for Staff Development, addressing the teaching and assessment of skills in Higher Education generally (Gibbs, 1995). Our additions in brackets after each quotation are no doubt somewhat cynical and facetious, but we believe they at least partially reflect underlying attitudes within parts of the profession of law teachers:
"Because assessing skills is so time consuming and because the development of skills requires frequent practice accompanied by formative feedback, tutors can rarely cope with the volume of work involved."
(Sorry, we don't have time to do the job properly).
"Some institutions teach and assess skills largely independently of course content and content-based assignments. One of the main problems facing transferable skills is how poorly they transfer."
(Sorry, we can only treat research seriously for certain designated research exercises.)
"It is ...common for students to be assessed on skills they do not have and which they have been given no assistance to develop."
(But we don't apologise because you pass anyway.)
"The quality of products can give a very misleading impression of the quality of the processes through which they were produced."
(We can't fail you if you get the right result.)
"Assessing personal skills is not something most lecturers have done before; they often lack the skills themselves."
(We're hardly going to admit that one!)
Top | Contents | Bibliography
How should we approach the teaching of research?
On the Northumbria University LPC this year we tried to address some of the concerns we share with Graham Gibbs. We believed that we should focus on the attitude problems indicated above. Perhaps they can be used as yardsticks to what we did. Did we move towards a course ethos capable of:
- giving the research work sufficient time? giving the students explicit help in developing the skill?
- integrating the research teaching across subject areas?
- developing staff confidence in carrying out the same work? and
- ensuring that the process of researching is recognised, not just the answers?
Of these concerns, we admit that changing ourselves and our own attitude to research, in practice and teaching, were the most significant. We too cut corners, think along tramlines, fail to document our research properly, rely on out of date or secondary sources. We wanted to change our own ethos and influence key members of the team in the same way. To achieve this it was essential that:
1. The task of teaching research should not be ghetto-ised - i.e. left to those with a bee in their bonnet. The work had to be designed and carried out at least across the LPC course team. We therefore cajoled members of each of the four core subject teams to join us.2. An open minded approach from the teachers should be adopted. Therefore research tasks should ideally not be devised where we already knew the answers. In that way we could try to see the task from a student perspective.
3. The tasks should lead to the student having to use a wide range of legal research tools: from texts, through encyclopedias, to computer databases.
4. The students should end up finding things in their research that are in themselves interesting and useful. In this way we planned to assist them in addressing potential knowledge gaps in the core subject areas.
Top | Contents | Bibliography
How could we inculcate a research culture?
We knew the profession was not yet satisfied with the abilities of new trainees to carry out legal research, and we had decided to beef up the research element on our course, but, as Graham Gibbs had pointed out, developing and assessing skills is time consuming. Our discussions started in early summer; the shortage of time meant that we would only be able to take a small step in time for the beginning of this year's course. This would therefore be a pilot programme on which we would build.(3)We decided that practical research should be a major theme of our introductory programme, in the belief that the style of learning emphasised at the start of the course would make a strong impression on students. Pushing, at the start of the course, the importance of research would focus students' minds sharply on their research abilities (or, as many students candidly reported, lack of them).
The challenge, after this opening research blitz, would be to ensure that the message was not forgotten in the following weeks, as the grind of ploughing through the core subject material, and the regular diet of assessments -all LPC students face a minimum of 17 assessments within nine months- took its toll on student enthusiasm.
The move at Northumbria, in line with national trends, away from lectures in the core subjects and towards transaction-based student-centred workshop learning, was intended to reinforce the importance of students finding things out for themselves. In addition to this, specific research exercises were set in each optional subject that the students took.
Top | Contents | Bibliography
The Introductory programme
Our Introductory Programme research 'blitz' began with a ninety minute lecture/workshop. This was followed by a ten day period in which students spent a substantial part of their time working on a set of twenty research questions which had been distributed in their introductory block manuals. The introductory programme culminated in an hour long seminar in which some of the questions, research methods and answers were discussed.
The lecture
The lecture session was split into three themes:
1: Not researching is not good enough (raising the level of anxiety).
Our lecture began by referring to the feedback from the profession on recent graduates. We emphasized that it seemed clear that the most successful and progressive firms increasingly saw competence in research as a valuable commodity. Incompetent research was clearly dangerous both to the firm and to the job prospects of the individual.
2: Some basic tools (showing the way).
We distributed a list of the major sources of legal information together with a guide to how to decide which source to use (taken from Stott, Legal Research, Cavendish, 1993). We stressed that it was not possible to learn research simply by attending a lecture on the subject - even this one. Like most other skills, after receiving initial instructions and guidance, practice and feedback would be essential to improve the skill. We suggested that as students on the LPC, they were fortunate in being able to practise their skills for nine months in an almost entirely risk free environment. Privately however we wondered if they would carry on practising any research once the timetabled exercises were completed? How many of them would be sufficiently efficient and self-disciplined to devote time to such non- assessed activity? (We look at this again below.)
3. A case study (showing research skills in context).
This part of the lecture examined a real life problem that had arisen in our Student Law Office (where undergraduate students represent actual clients). Students were shown the brief file note outlining the problem; they were then asked to work in groups to generate questions and research strategies. As the case study exemplifies the approach we wanted students to adopt, much of this lecture material is reproduced as Appendix 1. It was also handed to students at the end of the lecture.
The research questions
Duly inspired and/or intimidated (ideally perhaps both) by the introductory lecture the students then had some 7 to 10 days in which to prepare their answers to the research questions . At the end of this period the questions and answers were then considered in one hour seminar sessions attended by the tutors who had set the questions and groups of around 12 students.Not knowing how long the exercise would take nor how adequate our library resources would be, we had given only general instructions to the students. They had been asked to do as many questions as they were able to, in whichever order they wanted.
The outcomes varied widely. Some students with prior experience of legal practice seemed to relish the challenge that the exercise presented and answered all 20 questions. The majority of students attempted around 10 of the 20 questions. Many of these said that they would have liked to have attempted more but felt they had been given insufficient time to complete the exercise.
The research tasks
Where had the research tasks come from? In the summer we had asked members of each of the core subject teams to produce a set of four research questions of varying difficulty associated with their subject area. (Civil and Criminal litigation were treated as separate subjects for this exercise.) The questions produced varied widely from the relatively straightforward to the specialised, from the general to the practical.The following is an example of the straightforward type of question:
"Which sections of which Acts (and /or statutory instruments) govern the following matters:
a) the formal validity of a will;b) the distribution of the estate of someone who dies without leaving a valid will;
c) the procedure for obtaining a grant of representation to enable an estate to be wound up?"
This sort of question ought not to have caused a law graduate too many problems. The subject matter was likely to be familiar, precise answers could be found by taking a few relatively simple steps and the question was purely academic. Unlike a typical real life legal problem, there were no facts in dispute, the precise question which needed to be answered had already been formulated and it would have been fairly clear when a satisfactory answer had been found. In short, there was no practical context to consider.
Similarly,
"Which sections of the Companies Act 1989 have not yet been brought into force?"
demanded no great intellectual ability. A long list of sections which are in force can quickly be located in Is it in force?.
Nevertheless this question seemed to serve a useful purpose. Those students (and there were several) who had not noted down their list correctly could be reminded of the importance of accuracy to which Richard King had referred. Those who had failed to use the Noter Up, and therefore missed the fact that two sections of the Act had been brought into force in July 1995, had discovered the need to update. Those unfortunate few who had trawled through Halsbury's Statutory Instruments looking at all the references since 1989 to the Companies Act 1989 will, we hope, never again forget the existence of Is it in force?.
As well as such academic questions, questions on case law and on proposed changes in the law, several questions were set in a more practical context : An example is set out below:
"As a solicitor attending a client at the police station , you are under a duty to protect your client's interests. If your intervention during an interview is such that the police would like to throw you out of the interview, can they do so?"
Many students chose to answer these practical questions. Whether this was because they liked the practical context or because of an interest in the legal subject matter was impossible to tell.
The most practical question of all could only be answered by a site visit. The question asked students to research exactly what protection a pedestrian had at a particular junction, and the catch in the question was that although the crossing had light signals for pedestrians, it was not, when the rules were applied to that junction, a pelican crossing. This could only be worked out by going out (only 100 yards away from the Law building) and seeing if there were wavy lines on the approach to the crossing. This was too practical - not one student reported going and looking.
Tutor answers to these two sample questions are given in Appendix 2. These answers were not handed to students, however.
Should tutors have to teach outside their own subject area?
There had been some debate amongst staff about whether each seminar tutor should discuss only the questions which he or she had set or should attempt to cover the whole range of questions. We left this decision to individual members of staff and decided to evaluate after the event how it had gone.In the end only one of the five tutors decided to confine the seminar to questions with which he was familiar. In retrospect it is clear that this 'specialist' approach had both advantages and disadvantages. On the negative side it is difficult for a tutor discussing a subject with which he or she is extremely familiar to truly understand the difficulties faced by students considering it for the very first time. On the other hand, the specialist tutor should more easily be able to see where mistakes have been made, to explain any conceptual difficulties which arise and to advise on the best research materials available in that subject area.
Students in the groups taught by the 'specialist' tutor had been instructed to focus their research work primarily on the questions in the tutor's subject area. This meant that although they explored only a relatively narrow area of law, all of them, unlike students in other groups, had started with a task which they could be expected to complete. These students were probably therefore more actively engaged, or at least, interested in, all of the discussions which took place in their seminars. In other groups the disparate coverage of questions by students meant that some students would lose interest in the seminar if the question being discussed was not one which they had covered. It seems sensible to try to avoid this problem in future, but equally it is clear it is not directly related to the adoption or otherwise of the 'specialist' tutor approach. In future to ensure that all the students have covered the same questions we shall set fewer questions per seminar and make them all compulsory.
A rolling programme of research exercises covering different areas of law could address the problem of tutor specialisation - although it may be that narrowness of subject matter is irrelevant, at least to the student, in an exercise designed to practise the skill of research. And if we really want to address the staff research culture, allowing lecturers to specialise could mean they do not need to engage in the kind of research from first principles that we are asking the students to undertake.
The difficulties in relying on answers prepared by one's colleagues!
We had agreed that each tutor who had set questions for the exercise would prepare a detailed answer, including the research steps taken, which would be circulated to the rest of the team . This could cause obvious difficulties when one tutor was relying on his or her colleague's written answer and had not attempted to research the question him or herself. The temptation to 'pass the buck', leaving an enquiring student understandably frustrated, is strong.Problems can also arise when the tutor has researched the question in his or her colleague's specialist subject area. We all know that even the finest legal minds can disagree on a point of law, so it is hardly surprising that we should sometimes disagree with our colleagues. Students however, particularly on the LPC, crave certainty and no matter how much one explains to oneself and one's students that disagreement is to be expected, it usually seems to leave a bad feeling and to detract from the 'credibility' of members of staff.
A partial solution (which would have really tested our team commitment to the desired research culture) would have been for every member of staff involved in the seminar to research all questions, and not rely on the written advice of colleagues more familiar with the territory as to how they researched that question.
It proved impossible to discuss answers to all 20 questions in a one hour session, so some students probably felt frustrated at not covering questions to which they had prepared answers.
The different tutors adopted different approaches to this seminar although all of us attempted to establish an understanding of the research process and any answers found.
Evaluation of the programme - an initial questionnaire
At the end of our introductory programme around 40 students completed a questionnaire which included a section on the Research lecture and seminars. This was only a quarter of the students who had been through the Introductory Programme. Although there were a number of criticisms, primarily relating to the way in which we had structured the programme (students felt they had been given too much to do in too short a time ) it was clear that most students were now conscious of their own weakness in carrying out practical legal research and had been very pleased to be given an opportunity to improve their skills. Roughly three quarters said they had found the lectures 'useful' or 'very useful' and over three quarters felt that the written lecture material was 'useful' or 'very useful'. The seminar exercises were particularly well received with almost a third of the students saying that they found them 'very useful'. Many volunteered enthusiastic comments. We feel that the combination of this enthusiasm and a more carefully designed and more extensive programme could produce very satisfactory results in future years.An outcome we value is that at least some of the previous complacency about legal research was dislodged. Most students who volunteered feedback after the seminars suggested that they had moved from being unknowingly incompetent at research to becoming knowingly and painfully aware of their deficiencies. So the question now is: what use did the students then put this ignorance to? Did they consciously try to get better, or merely continue to 'get by' as many must have done in their previous studies?
Evaluation of the programme - a follow-up questionnaire
Twelve weeks later, towards the end of a demanding first term, we distributed a second questionnaire to 45 full time students attending a revision lecture. Relating specifically to research, this questionnaire was designed to gauge what longer term effect, if any, the students felt that the introductory programme had had.We asked students to tell us which research sources they had been using in their study of the core subjects. Almost all had relied heavily on their subject manuals. Roughly a third said that they 'often' referred to other textbooks. Around 10% said that they 'often' referred to primary sources and over 50% said that they were consulting primary sources 'sometimes' in both Litigation and Business Law and Practice. But this still leaves nearly half relying entirely on secondary sources.
Almost none of our students were using legal databases regularly but this may have been at least partially because of a lack of easy access to facilities which are in the process of being upgraded.
We were encouraged that over 70% of respondents felt that their research skills had improved since the beginning of the course. As a public relations exercise on behalf of research awareness our programme had been successful. The same 70% (who had by now passed their assessed research exercise) felt that they were indeed competent in legal research. To label a student as 'competent' may encourage complacency, but it is a requirement of the Legal Practice Course. A better description would be to describe the student as 'familiar with basic research techniques'. It would be helpful to know if their future employers share this view of their competence. We are currently surveying the views of local trainees and their supervisors on how useful the LPC was, and have asked for comments on research skills. We also await with interest the results of similar research commissioned by the Law Society.
It was also encouraging to see that 60% of the respondents said that they were devoting at least three hours per week to legal research tasks other than directed reading. The same percentage said that they had applied the problem solving techniques described in the research lecture and set out in Appendix 1. Less encouraging was that fewer than 40% said that they intended to practise their legal research skills as far as possible in the future, the majority being content to practise their skills where directed to specific tasks. Of course, this response may relate only to their intentions while studying for the LPC.
Judged by the yardsticks for a successful programme which we identified above, i.e.:
- giving the research work sufficient time;
- giving the students explicit help in developing the skill;
- integrating the research teaching across subject areas;
- developing staff confidence in carrying out the same work; and
- ensuring that the process of researching is recognised, not just the answers;
we had only partially succeeded in our objectives.
We had given more time to research but most students indicated they would have preferred more time still. We had tried to give students explicit help in developing the skill but only on a group and not on an individual basis. Research was now included across subject areas but we could still not claim that it was fully integrated.
Cultural change is bound to be slow: but there is evidence to suggest it is happening. When our colleagues from the LLB (Exempting) team discovered what we were doing, they invited us to deliver the same programme to that course; a four year degree which incorporates all LPC elements, unique to the University of Northumbria . A group of students who accidentally missed out (because they take a year in France as part of the Exempting Degree some of their programme is rearranged) clamoured to be given this research programme.
Top | Contents | Bibliography
Conclusion
It is now clear that what was intended to be a 'blitz' was no more than a taster. Students wanted more time, more guidance, and more seminars. Despite encouraging noises about the time spent on research activities since the programme, they are not turning in significant numbers to primary sources. They are still largely relying on pre-digested information. Almost all report an increase in awareness and ability. This is perhaps a start.But the main beneficiaries, we now realise, have been the two authors. We are now taking legal research more seriously, and this will continue to influence our own teaching, publishing and practice.
Top | Contents | Bibliography
Epilogue
A keen student, caught up in the research work, failed to get a ticket in advance for the big football match at St James' Park that Saturday. On the day of the match he found a tout selling tickets outside the ground at £40 a piece. However as soon as he handed over the money the police swooped, arrested the tout and confiscated the student's ticket. Silently protesting 'that's not fair, you can't do that', the student decided to apply the research techniques he had just learned and concluded that he could sue the police for the price of the ticket. He recounted the story to us with some pride, but his courage failed him when it came to taking action. Perhaps discretion is the better part of research as well as valour, - certainly it was in this case- as he later discovered he had got the answer wrong!Top | Contents | Bibliography
Appendix 1
Extracts and comments on the lecture material
1. The ethos
Firstly we desired to wrench students away from the habit, learned at the academic stage, of thinking of legal problems as coming with given and unalterable facts. The following quote, from a psychologist, was used to illustrate the need for a different approach:
"In the adversary (sic) system the lawyers have identified their particular versions of the issues, facts and relevant law. The judge's job is to choose between them and not to conclude, however much it may coincide with common parlance, that the truth may lie somewhere in between. Judges' written decisions read as perfectly sensible and many may wonder why there was all the fuss, why the case was taken so far. But the judge, in his or her decision, has the advantage of deciding the 'true facts' and editing out the controversy" (Carson D. 1988)
2. The case study
Here is the case study file note for which the research strategy was required. (The file note is from a real case.)
"The new house that [client] has moved into with family has been found to have faulty wiring (despite chartered surveyors' report and electricians' search of property).She wants to know whether she can sue:
(1) the electricians who had recently said it had been rewired, before they bought house or
(2) estate agents who recommended the electrician?"
3. Generating questions before answers
Students were then asked to attempt to generate questions which would need to be answered before advising this client. These could be factual or legal questions. A brainstorming rather than a critical approach to generating questions was encouraged.When students had generated a reasonably large number of questions, they were asked to evaluate them and if necessary to reformulate them. We told them to break down questions into elements that were capable of an answer. For example:
Has my client got a good case? (This question cannot be answered without answering many other questions, and is therefore unhelpful.)
Can I prove negligence? (This question is capable of answer, but is still very broad.)
Is there a duty of care owed by the estate agent in selecting an electrician for the purchaser? (Here, we suggested, is a question which can be researched, and is probably sufficiently narrow for the researcher to know if the answer has been found.)
We suggested that stage 1 is to ask questions, stage 2 is to address the issue of how to answer them, and stage 3 is to attempt the research. After the students had spent some time trying to formulate questions, we gave them the following list of suggestions. We made it clear that they were not intended to be perfect or exhaustive, because refining the questions is part of the strategy We had put ourselves through the same process as the students when we tried to answer the questions, and from the research described in answer to questions 1 and 6, we show that the questions were reformulated as the process took place.
1. Who is my client?
2. What is the cost of putting the work right?
3. What is wrong with the wiring?
4. Should a competent electrician have spotted the problem?
5. What is the appropriate compensation?
6. What duty is owed by the estate agent?
7. What duty is owed by the electrician?
8. What is the likely cost of pursuing a claim?
9. Is the client eligible for help?
10. Is the house safe at present? Is any action urgently needed now? Who can pay for this? Will remedial action affect later legal action?
11. What does the client really want? Money? Justice? An end to the hassle?
12. Who is the electrician? Is he or she insured? Professionally qualified? What accreditation schemes exist for electricians?
13. What is the relationship between the electrician and the client?(end indent)
Strategies for research
The development of research strategies, and the next stage, the attempts at answers to two sample questions, are set out below together to avoid repetition. However, the process suggested was to attempt to define research strategies for all questions before starting to answer particular ones. In this way the size of the task, and the priorities, could be identified.What is set out below is the document handed to students at the end of the lecture, and it contained the following caveat:
"The strategies below do not purport to give textbook answers to the questions. Some of the questions I formulated turned out to be unanswerable - in breach of my own guidance, they were too vague and needed reformulating as I went along. Sometimes there is no definitive answer and I have to rely on extrapolation and reasoning, the very essence of lawyering. Sometimes further questions are thrown up, which I have not attempted to address - but you will need to if you are not confident of the answers to such questions."
1. Who is my client?
Research strategy planned1. Check rules that apply in Professional Conduct Guide
2. Ask Mrs G. If she wants husband to be included, ask him.
3. Who will pay? Can legal aid be granted jointly? Check regulations in LA Handbook.
Research carried out
(NB The law stated in this appendix and in Appendix 2 is what we found in September 1995.)
1. I started by looking up 'client' in the Guide to the Professional Conduct of Solicitors (6th Ed 1993) - always make a note of exactly what source you have used, because you or someone else may need to retrace your steps - hoping that the index would reveal something like 'acting for more than one', or 'joint clients'. It did not. Several areas of potential relevance, such as confidentiality and conflict of interest occurred under that heading.I tried 'instructions' (page 216-222) but this did not cover the question of identification of the client(s).
The guide contains a chapter on 'Relationship with the client'. Again, however, there is nothing there on the issue of who is my client.
Under 'retainer' duties to the client are described - the need to apply a 'proper standard of work'.
It seems there is nothing in the guide directly on the question as asked. Research does not necessarily, or at least immediately, reveal answers to questions as phrased.
If I rephrase the question: 'Is there anything known to me that could cause a conflict of interest to arise if I were to act for both wife and husband?' and 'Who is my client at present?' I can begin to seek further factual and legal information. I need to go to the next stage of asking Mrs G (the current client) about ownership, payment etc., before identifying if it is the husband or the wife or both who have the interest in this matter.
If both, how do I make them both my client? If only one, that person has to instruct me.
The guide does not answer this explicitly, as I can find nothing on the point under the above index entries. Can I start again from first principles? Under 'Client - instructions' (pp. 284-5) there is a statement which starts' when confirming the clients' instructions in writing' - so this is presumably a part of the duty. It implies that there has been a statement on instructions earlier in the guide, and I flick back through principle 13. 13.02 and 13.03 talk of what to tell the client - but not how to be instructed. 13.04 talks of what to do when taking instructions in relation to costs. I go back to 'Retainer'; and find under 12.05 guidance on what to do if the instructions are obtained from a third party not the client. If the husband is to be a client, then the wife is a third party in my relationship with him. He must instruct me directly - the guidance says see him or obtain written instructions - and under 12.04 check whether there is any reason to suspect undue influence (not apparent in this kind of case).
3. (Assuming both instruct me and nothing is revealed which could cause a conflict of interest, and limiting the research to civil legal aid issues.)
1995 Handbook: nothing under 'client', so try 'applicant'. Page 57-63 for civil legal aid. This takes us to the Notes for Guidance. These talk of the applicant as an individual - implicitly answering the question about a joint application. But notes are not law. The notes refer to statute and regulations. Part IV of the 1988 Legal Aid Act can be found, via the contents list of the Act, to deal with civil legal aid. Legal Aid is available (s.15) to 'any person' who satisfies the tests described (not researched at present). S.15 refers to regulations, and the contents page takes us to p. 260. Reg. 10 again talks of applications being made by 'any person'. Reg. 32 (identified by flicking through the regs) talks of proceedings in which another person has an interest, but fails to identify what happens if that other person is also applying for legal aid.
The question needs refining, perhaps. Is the issue one of financial eligibility and contributions? Try: If wife and husband both apply for legal aid, how are the resources assessed?
Resources in the index takes us to the Civil Legal Aid Assessment of Resources Regulations 1989. Reg. 4 sets out how income and capital are calculated, but reg 7 states that the income of a spouse is treated as that of the applicant. If each makes an application do they end up paying two sets of contributions? Unfair as it seems, this appears to be the answer, so do we advise Mrs G (or Mr G) to pursue the application on his own? This would raise yet another question, whether one person can recover the other's share of the damages without being party to the action. But perhaps we need to delve into the Schedules referred to in reg. 4 on computation of income and capital. Nothing comes up here. Intuition drives me not to give up yet.
Try looking up contributions. The index sends us to page 48 for 'waiver of'. Here we find a statement under Notes for Guidance, Note 4. This cites no authority, but states: 'When a person (including spouses or cohabitees) has more than one certificate in force, those certificates will be linked and only one contribution will be sought.'
Do we have an answer? Could the answer have been obtained simply by ringing the Board? Yes, but as a lawyer you should be in a position to challenge the Board if you don't agree with their interpretation, so check what they tell you if you have any reason to doubt the answer received.
2. What is the cost of putting the work right?
Research strategy planned:
1. Does client know? Ask.2. Obtain estimate. Who will instruct? What will it cost?
3. What is wrong with the wiring?
Research strategy planned:
1. Does client know?2. Obtain expert report.
3. Who will pay? If legal aid granted, will LAB? What procedure? How soon? Check in LA Handbook.
4. How will we find an expert? Is there a register? A central body for electricians? Anyone I know who I can trust to advise on this?
4. Should a competent electrician have spotted the problem?
1. Ask expert to advise specifically on this.
5. What is the appropriate compensation?
Research strategy planned:
1. How does the law decide the measure of loss to the client(s)? Assuming this is a question of tort, look at up to date text book on tort.
6. What duty is owed by the estate agent?
Research strategy planned:
1. Decide if this is a contractual relationship, or one of tort. Look in up to date text books, especially any text on professional negligence.2. Look up similar cases and articles: try Current Law (key words estate agent, duty of care); try journal index; try Lawtel, Lexis.
3. Is there any statute law on estate agents? Index to Halsbury's Statutes.
Research carried out:
Assuming that research has led me to conclude that I am primarily interested in liability in tort, and also assuming that my factual research has led me to believe that pursuing the electrician is going to be unproductive because he has no assets or insurance, then it becomes crucial to know whether there is a duty on the agents.What would the duty consist of? To take care in selecting the electrician they recommend to carry out the wiring check.
I started with Clerk and Lindsell on Tort, 16th Ed, backed up by the third cumulative supplement. Under estate agent there was no entry in the index. There was a lot under professional negligence, but again not for this profession. It was time to browse, so I went to chapter 11 on professional negligence. At 11.02 I found a helpful general statement from the case of Lamphier v Phipos (1838) 8 C & P 475 that: Every person who enters into a learned profession undertakes to bring to the exercise of it a reasonable degree of care and skill.
But I also found shortly after a statement that a third party (i.e. non client) will recover for purely financial loss only exceptionally. For example in Harris v Wyre Forest DC [1989] 2 WLR 790 there is a general statement that there is no duty to persons other than the client to warrant the quality of buildings - there must be evidence that the professional undertook a duty. The case is now 6 years old, but worth looking up, which I did. In the actual case the duty was owed by a building society valuer to a mortgagor.
The cumulative supplement refers to Caparo v Dickman [1990] 2 WLR 358. This case held that there is a duty to a third party for statements made if there is a known recipient relying on it (in the actual case the auditors of a company's accounts were not in that situation, and owed no duty to the plaintiffs who in reliance on the statements acquired a company at above value).
It seemed to me at this point that Caparo is an important case. We can argue from it that the particular degree of proximity required to establish a duty is found. We need to talk to the client and establish exactly what recommendation was given to use this electrician, and then in relation to the breach of the duty, to establish whether there is any reason to believe the estate agents should have known he was not to be relied on. But in the meanwhile, given that this is a fluid area of law, has Caparo been approved subsequently, overturned, distinguished etc.? There are several ways forward here. Lexis would throw up citations of the case just by using Caparo as the search keyword. Current Law Case Citator could identify those cases where it has been mentioned. A journal search is likely to indicate any important case law in the area, since this is a very important topic both professionally and academically.
I used Lexis and the journal index, both available on the same computer terminal on floor 4 [of Northumbria's Library]. Without citing every article and case which resulted, I found repeated references to a case McCullagh v Lane Fox and Partners Ltd QBD 14 January 1994 [1994] 08 EG 118 and [1994] EGLR 48. This essentially repeats the principles of Caparo. An estate agent misrepresented to the purchaser that the property was an acre whereas it was only a quarter acre. It was held that there was sufficient proximity, a duty of care was owed (but as the price paid had been a reasonable price for the property there was no loss to the plaintiff).
The question that now needs to be answered is what happened, will we be able to establish sufficient proximity, and a breach? (As it happened the agent had not only recommended the electrician but had also directly instructed him; and it turned out that the electrician was not accredited with the professional body, so on both counts the facts supported a duty and breach.)
7. What duty is owed by the electrician?
Research strategy planned:
1. Define the relationship between clients and electrician. Who actually commissioned the inspection? who paid for it? ask clients. Obtain any written instructions and report.2. Assuming the answer is that the estate agents handled this and there are no written instructions - is this a contractual relationship? Is it one of agency? Look in text book for principles.
8. What is the likely cost of pursuing a claim?
Research strategy planned:
1. Identify stages at which case may be resolved.2. Ask more experienced litigator.
9. Is the client eligible for help?
Research strategy planned:
1. Which client?2. Check regulations for green form and for civil legal aid, ascertain capital and income requirements; allowances; obtain financial information from each client.
10. Is the house safe at present? Is any action urgently needed? Who can pay for this? Will remedial action affect later legal action?
Research strategy planned:
1. Ask clients? Obtain expert opinion on safety.2. If action urgently needed, will destruction of evidence affect case? Try text on civil litigation. Ask experienced litigator.
3. Can any money be obtained in advance of a trial? Check civil litigation procedure - e.g. County Court Practice.
11. What does the client really want? Money? Justice? An end to the hassle?
Research strategy planned:
1. Ask - but do not pressurise for decision.
12. Who is the electrician? Is he or she insured? Professionally qualified? What accreditation schemes exist for electricians?
Research strategy planned:
1. Obtain name and address from client; from estate agent; phone or visit; check letterhead if available; talk to expert currently instructed.2. Look in electrical press.
13. What is the relationship between the electrician and the client?
Research strategy anticipated:
Question already tackled above.
The handout contained the raw research carried out and written up, to show a process and not a result. Not all questions were answered and we did not wish to suggest we were yet in a position to advise the client. The handout therefore ended with the following question:
"Has the formulation of these questions and research strategies led to the need to ask any more? e.g. Is there anyone else who might be sued? What is the position if on is liable and the other not? If both are liable, who pays the damages?"
Top | Contents | Bibliography
Appendix 2
Seminar research questions and sample answers
Research question:
"As a solicitor attending a client at the police station, you are under a duty to protect your client's interests. If your intervention during an interview is such that the police would like to throw you out of the interview, can they do so?"
Tutor answer
"Starting point - the problem seems to be about police procedures. I looked up the microfiche of books in the library and found a large number of books on the Police and Criminal Evidence Act, mostly quite old. I decided to look at the Act itself (but it is hard to know whether a student would actually appreciate that this Act is relevant just from the title - in which case, a short circuit would be to look in a book they already have, Osborne, index: police powers - detention - legal advice during , to get onto the same pathway).I looked up "police" in Halsbury's Statutes, but parts of the Act were omitted and to be found in volumes 12 (Criminal Law) or 17 (Evidence).
Looking at vol. 12 police - detention - legal advice got me to p. 906 and s. 58 of PACE. This shows that a detainee has the right to consult a solicitor at any time, with exceptions under 58(8) where the exercise of the right would (inter alia) lead to interference or harm to the evidence. Reasons for delaying this right must be given in the custody record.
This does not really answer the question - at least directly, since it is the right of the detainee, not a description of procedures at the time of its exercise. For safety I checked in the cumulative supplement, and the section has not been amended. I also looked in the Noter Up, and for PACE I found reference to the Codes of Practice (Number 3) Order SI 1995/450. On floor 4 [Northumbria Library] the SIs are not that recent, but it was available at Official Publications. The SI states that version 3 of the codes is to replace the previous version, and the Code, being a publication of HMSO, is available from the Librarian, and stated as being in force from April 1995.
From there it is downhill. Code C deals with detention, and section 6 the Right to Legal Advice. 6.9 states
"The solicitor may only be required to leave the interview if his conduct is such that the investigating officer is unable properly to put questions to the suspect".Note 6D clarifies that solicitors should intervene to protect their clients including advising not to answer certain questions. It says that examples of improper interventions include answering questions on behalf of the detainee or providing written replies.
6.10 states:
"If the investigating officer considers that a solicitor is acting in such a way , he will stop the interview and consult an officer not below the rank of superintendent....[to make the decision]"Copies of the code could have been found in Blackstones Criminal Practice 1995 (but is it up to date to April 1995? No), Brayne's LPC Criminal Litigation case study (P.3) [provided to our students, Blackstone 1995], Stones (1996, not yet published) and a number of up to date publications on PACE. Old publications on PACE however are no use because they will not show that the codes have been replaced.
Other ways of finding the information would have included a journal search on say police detention, or just an index search in Criminal Law Journal, since detention and police are topics likely to be written about a lot.
Research question:
"There is a light controlled junction on John Dobson Street, beside the YWCA. What protection does the green person signal afford a pedestrian crossing the road?"
Tutor answer:
The purpose of asking this question is to remind students of the dangers of making assumptions and of the need to cross check the legal research with the factual situation. I fell into the trap myself when I first looked up this point. Students may think the lights at John Dobson Street (if anyone actually went and looked - they should because the [Northumbria LPC] Civil Litigation case study will be based on this) are a pelican crossing and therefore look at the protection given in the Pelican Crossing regulations. But the definition in those regulations of a pelican crossing includes the presence of wavy lines on the road. At John Dobson Street there are no such lines. Nevertheless pedestrian signals exist, and it turns out that all they do is indicate to the pedestrian when it is safe to cross. They do not accord precedence to the pedestrian, and so any pedestrian claim or criminal prosecution would be based on other principles: negligence for a civil claim (as evidenced by driving through a light that was red for the driver) or contravention of the regulations requiring a driver to stop at the red light for a criminal case.How to go about researching this: I went straight to the Highways Encyclopedia. There are pelican crossing regulations, which do not apply, and Traffic Signs Regulations and General Directions SI 1981/1859, which describe at reg. 35 under the heading 'Light Signals for Pedestrians' what is 'the period during which in the interests of safety pedestrians should not cross' (i.e. when the red person is showing). That seems to be the full extent of any statutory protection available to the pedestrian from these signals.
Bibliography
Ames, J (1995) "Consumer report slates poor work" 35 Law Socety Gazette 64,
Brayne, H and Grimes, R (1994) Professional Skills for Lawyers (London: Butterworths).
Carson, D (1988) "Psychologists should be wary of involvement with lawyers"in Van Koppen, PJ, Hessing, DJ and Van den Heuvel, G(eds) Lawyers on Psychology and Psychologists on Lawyers
Gibbs, G (1995) Assessing student centred courses (Oxford Centre for Staff Development)
King, R (1994) "The Profession's Viewpoint" presented to a Legal Research workshop at Redditch, 21 July 1994.
Nathanson, S (1989) "The role of problem solving in legal education" 39 Journal of Legal Education 167
Footnotes
(1) The Legal Practice Course is a nine month course which must be completed by all those who wish to qualify as solicitors in England and Wales. Students on the course will have usually have completed either a three year law degree or a degreee in a different discipline followed by the nine month CPE. On completing the LPC most students will enter a two year training contract., Introduced in 1994, the LPC requires students to cover the four 'core' subjects of Business Law and Practice, Conveyancing , Litigation and Wills Probate and Administration, together with two options. As well as passing a number of assessments in these subjects (which incorporate the pervasive themes of Financial Services, European Law, Professional Practice and Revenue Law) students must demonstrate competence in five legal skills, drafting, advocacy, interviewing, negotiation, and legal research. The standard required to pass the course as a whole is one of readiness to enter a training contract. Back to text.
(2) It can be argued that 'creative ' problem solving is not only difficult to 'teach'but also is a skill which should be cultivated by 'experts' rather than the relative 'novices' undertaking the LPC. See Ericsson & Smith(eds) Toward a general theory of expertise, Cambridge, 1991. Back to text.
(3) Whilst writing this article the authors have become aware of Steve Nathanson's work in this field (Nathanson, 1989) and this will no doubt influence future programmes. Back to text.