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Are the kids all right? Millennial approaches to legal research and writing | Neil Guthrie

Friday, November 22, 2019 @ 1:34 PM | By Neil Guthrie


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Neil Guthrie %>
Neil Guthrie
Now that ‘OK, boomer’ has become a millennial riposte to perceived slights (presumably with an actual eye-roll or the equivalent emoji), I should say that, by and large, the kids are all right when it comes to legal research and writing. Or at least the ones I see. Having taught a section of Advanced Legal Research and Writing at the law school at the University of Toronto for five years (until the faculty decided to ditch most of its adjuncts this summer), and a similar course for the school’s Global Professional LLM, I can say that standards are fairly high. This is true of the summer and articling students at my firm as well. I have come across some excellent writing and solid research.

Not everything is ideal, however, and some patterns emerge.

When it comes to research, law students assume that everything is available in digital format. They search using the keywords that come readily to mind. They do not browse in a book or along a shelf. They may never have visited a physical library. Many of them don’t read books — not even e-books. This shocks me, the owner of a physical library of more than 3,000 titles (all catalogued). It is therefore a source of enormous satisfaction when a student comes to me in a panic, asking how to find an Upper Canada statute and trace its amendments. In my class on legislation, I always warned students they would have to do this, and that it would involve a railway or a mining company incorporated by private statute. They probably rolled their eyes at the time, but I get the last laugh when I send them off to the Great Library.

A research lawyer colleague complains that students want rules they can impose on the ambiguities of law, life and human conduct. As a famous judge once said, ‘such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all’ (the Earl of Halsbury LC, in Quinn v. Leathem (HL, 1901)).

The desire for rules also has an effect on millennials’ writing. Once they get to law school, they are quick to adopt jargon that makes them sound as though they have also acquired legal knowledge and judgment: absent (for without), aforementioned, in sum, quære, save and except. … These words and phrases may add a lawyerly veneer — but remember that it isn’t usually intended as a compliment when someone says, ‘This looks like it was written by a lawyer.’ Unthinking adoption of legal jargon can (as Richard Wydick puts it in Plain English for Lawyers) ‘give a false sense of precision and sometimes obscure a dangerous gap in analysis.’ Rule-mania also prompts many to embrace the complexities (and absurdities) of legal citation with the zeal of a religious convert, fussing over commas and square brackets. It is always amusing to see how really into citation format a roomful of law students or lawyers can get.

Grammar has clearly not been taught systematically for decades, except to those learning English as a second language (and more on them in a moment). The battle against universally split infinitives is probably lost, and (in speech at least) I come across baffling pronoun mismatches like Her and Ali went and Me and him are going. Of apostrophe catastrophes there is no end. While ESL students often have a better grasp of things like the accord of verb tenses, grading a newcomer’s assignment can be a tricky exercise. It’s wrong to impose a penalty on someone for not being a native speaker, but on the other hand an Ontario lawyer needs to be able to write clear, correct and idiomatic English. This arises more in the Ryerson Law Practice Program or the GP LLM, where new arrivals are entering the legal profession by less traditional avenues. Their need to resort to those avenues says much about the law’s diversity problem — but that’s a subject for another article. It doesn’t always make marking their papers easy in any event.

Perhaps I am just being a cranky older person — and there is a good argument that the millennials, in much of what they do, are only emulating the errors and bad habits of many of their elders.

Are there solutions for millennials (and their elders)? No easy ones, but these come to mind. Go to a law library. Talk to a law librarian — and a research lawyer, if you have access to one. Consult the guides to legal research on the various law school library websites. Use the library catalogue. Open physical books. Browse the shelves. Do some homework before you go online. Brush up on your technical writing skills, whether it’s through a course, some coaching or reading. Avoid legal jargon and use plain language wherever possible: don’t try to write like a lawyer. Think of your reader when you write, especially if that person is not likely to be lawyer.

Neil Guthrie is director of professional development, research and knowledge management at Aird & Berlis LLP in Toronto. He is the author of Guthrie’s Guide to Better Legal Writing (Irwin Law, 2018). The views expressed are his own.

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