Informal Legal Research: cheating or just poor practice?

By Carolyn Penfold

A student recently posted an assignment in the form of a problem question on an internet forum, asking forum participants for advice as though his facts were a real case he was researching. When this came to light the student claimed he’d done nothing wrong, while the teacher claimed it was a case of academic misconduct. It made me think about students discussing their assignments with their lawyer parents, or with tutors who set them on the right track, or whose barrister mates comments on their papers prior to submission. Meanwhile, we ask students to use scholarly academic research methods. We would like them to use formal research tools such as library catalogues, digests, citators, bibliographies and current awareness services to locate text books, monographs, legal encyclopaedias and journal articles. We would like them to cite cases from the best sources, ie, authorised reports, and to use only official versions of legislation.

But where does academic misconduct begin and end? I mean, wouldn’t lawyers ask their friends where to start? Wouldn’t they ask another lawyer who has dealt with a similar case before? Or, heaven forbid, perhaps they’d even post their facts on an internet forum, hoping to get some quick advice. So, is informal legal research OK? If not, how do we get students to appreciate the importance of formal research methods and the place of more informal methods?

Some suggestions:

• We need to acknowledge that in real life informal research methods are very commonly used, but that such methods are only useful if a lawyer knows the formal methods also; to confirm, to update, or to further research whatever they get from informal means. Learning to use these aids and materials for legal research is a must; they are foundational skills for lawyers to ensure their knowledge is thorough, correct, and up to date. (No one would make a claim or submission in court, or submit an article or manuscript for publication, without being sure of the law and the arguments in the area.)

• We could pay more attention to the processes students use in their work, while currently it appears we’re only interested in the product. For example, whether students are required to produce a shorter letter of advice or a longer research essay, it is generally only the final advice or essay which is assessed, and little attention is paid to how they got to that advice or essay. We note whether or not they have cited appropriate authority to support their propositions, we note whether or not their reference methods are correct, and we note whether or not they have found all (or most) of the salient material. And we might assume from these things that students have conducted the research using acceptable methods.

• We need to make really clear to students which processes are and are not acceptable for any piece of work. Can students discuss their assignments with peers so long as they write up their work individually? Can they discuss it with parents? Siblings? Friends? What if their parents, siblings, or friends are lawyers? Can they ask for help from librarians? Senior partners? Tutors? Is this an assignment requiring pure documentary research, or is it okay to ask around?

• We could ask students to submit a research log with every piece of written work they produce. This would indicate the importance we attach to research methods, as well as assisting students to reflect on their own development as researchers. If this were required as a matter of course, rather than a one-off assessment for a legal research course, it may indicate to students the importance of knowing and being able to use formal methods of research, of reflecting on and learning from their research experiences, and of developing and further honing the necessary skills.

We need to make it clear that the formal research skills they are required to learn and use in law school may in practice be mingled with informal research skills developed along the way. Then when students go into practice they may well use friends, family, senior partners and internet forums as a starting point, but at least they’ll have the necessary research skills to fall back on, or to confirm the information these informal sources produce.

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4 thoughts on “Informal Legal Research: cheating or just poor practice?

  1. Carolyn says:

    Hi Adam,
    Thanks for your comment. While you are probably right in saying that ‘modern workplaces are incredibly focused on collaborative and peer-to-peer learning experiences, because they’re efficient, accessible and highly effective at transferring relevant knowledge’ it still requires someone to have that knowledge to begin with. If no-one in the office has the knowledge, they may need to use their research skills to find it so they can share it with others. Which suggests there is a place for both an ability to research from first principles AND an ability to know who to ask…

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  2. Adam Williams says:

    It depends on what the relevant learning outcome is for the task: for the student to be able to understand and synthesise the relevant area of law (in which case, who cares how they learn it); or for the student to undertake a dry and tedious search of arcane resources they’ll never use on the job, to arrive at the same understanding of the law. Too many teachers expect students to toil in isolation for its own sake, for no additional pedagogical value. Modern workplaces are incredibly focused on collaborative and peer-to-peer learning experiences, because they’re efficient, accessible and highly effective at transferring relevant knowledge – everything academic research and writing is not. To pretend at universities that this not a reality is to deny students the opportunity to prepare to succeed in real vocational settings.

    The most surprising thing to me about this post is that is doesn’t end with an explicit statement that the faculty is examining the issue and will promptly provide clear, unambiguous policy guidance to students on what is and is not permissible. That’s all that students care about.

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  3. Hasan says:

    Thank you for the post, interesting read indeed. I would agree that formal and informal in practice mingled along the way. I would go further and suggest that sometimes the informal plays a better role in explaining some of the difficult concepts of law where law teachers had forgotten how difficult they were when they were themselves students. Being around those concepts for long time made them assume they are simple, why those stupid students cannot understand?

    If the reader is patient enough to continue reading, I have a personal story to share. I was raised in a large family (6 sisters and 2 brothers). All of us went to public schools where 60 or 70 students at very small classroom. Understanding was impossible, call me stupid, perhaps. When I complained to my late father, he suggested that we should help each others. Thus 8 kids at the house would make a school! My beloved sister (only one year older than me) was my tutor who persistently taught me, in a very friendly manner, how to solve math questions, how to understand science mysteries, and how to write effective essays . Her hints on exams and how to guess what questions would be in exams are still useful to this very day. I am still discussing my law assignments with here and I found her ‘informal’ insight very useful. Though she is gynaecologist who dislikes law and lawyers.

    Finally, if you are still reading, my apology for such a lengthy post added to your reading list.

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  4. Great suggestions! Informal research in academic writing is acknowledged as “communication with writer held on file”, “qualitative survey” etc.. We could let students ask for advice but then require it to be cited – that would then allow the students marks to reflect the extent to which they’d justified relying on such advice.

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