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Q: Why is my lawyer billing me for "legal research?" Aren't lawyers supposed to already know the law?
A: It may be difficult for any client to appreciate why, as they review their bill from an attorney, an hour of court time is often preceded by five, six or in some cases dozens of hours of legal research. We expect our attorneys to "know the law" and it is thus sometimes frustrating to see that, in a particular case, the lawyer is billing us for time spent actually learning the law in the context of the particular case. It is true, however, that even the most skilled of attorneys with years of experience, eventually, must crack open the books or turn to a legal research database in order to find authorities to support whatever positions they are arguing on behalf of their clients.
There are three primary reasons why extensive research may be necessary in any given case. First, the law continues to change and evolve on a daily basis. Every time an appellate court issues a written opinion, a legislature passes a new bill into law, or the trial judge in your particular case issues a ruling, the landscape changes sometimes insignificantly and other times in a way that could effect the outcome of any given case. Second, the American court system was developed, as set forth in the constitution, pursuant to the "common law." The common law includes the written opinions of judges going back some 700 to 800 years in England and has developed, over the centuries, as each year, new judges are asked to interpret the decisions of their predecessors and evaluate whether or to what extent the precedent established in one court or another in history should or should not apply today. Finally, in every case, each side is represented by it’s own counsel. The lawyers for each side are committed to advocating their clients positions as zealously as the law and circumstances will permit. Your lawyer may therefore walk into court with specific authority in hand prepared and ready to argue why the position you advocate should be embraced by the judge and reflected in a final judgment in your favor. If the other side’s lawyer is at all prepared, however, he or she will be ready to show not only that the facts are not quite the way you see them (or that there are other facts which are at least as significant as those you consider to be those that matter), but also to argue that there are exceptions to the rule your attorney is relying upon and that, for one reason or another, those exceptions should apply in this case. In any case, therefore, it remains a possibility that the other side will choose to argue over any number of details or levels of concern.
| The more complex the case, the more that is at stake for either side, the more likely it is that the parties will want their attorneys to invest increasingly more time and effort to focusing on such details such that, although a dispute involving $10,000 may be likely to be concluded over a period of months, a dispute involving $10,000,000, even when the issues are relatively similar, may take years to resolve.
Legal research is thus often necessary either to ensure that the initial position one may take in a case is both rational (supported by reason) and strong (supported by the most current, most relevant and most fact specific law supported by authority).
The common law is a unique but important aspect to the American legal system. In England, since the earliest day of the king’s court, the judges were expected to both decide the matters before them and, in many cases, to publish written opinions enunciating the various reasons why they believe their decision was appropriate in each particular case. The next generation of judges, in turn, was presented with these written opinions by lawyers who would argue that the case they were advocating should be decided like or unlike the prior case because, they would claim, the principles and reasons enunciated by those early judges should still apply. This next generation of judges, accordingly, were forced to reconcile often differing opinions among those judges who had come before them in order to try and find common threads and better enunciate what guiding legal principles should be or could be gleaned from a synthesis of this authority.
This task, of reconciling historical precedent with current problems, became increasingly more difficult over time. From the 1200's when the king’s court first began the practice of publishing it’s opinions, over the ensuing hundreds of years, cultures, economies and scientific advances gave rise to such changes in the landscape that it became increasingly more difficult to determine whether the earliest of precedents would apply in a given case or, in the alternative, whether the decisions of one generation should be set aside in favor of a new perspective guided by changes in the world itself. The common law differs from the law as it developed in France (the so called civil law), however, in that attempts continued to be made to reconcile each published decision with history. If a change in the law is found to be appropriate by a given appellate panel, those judges are expected to enunciate why they believe such a change made sense or should be adopted so that future generations may have the benefit of their written opinions from which to decide the next case.
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The debate over whether the American judicial system should continue to be guided by the common law is evident in every news story or opinion regarding whether "activist" judges should be allowed to sit on the bench. The common law often comes in to tension with specific statutes, ordinances, or other declarations of applicable law which are voted on and adopted by the various federal and state legislatures. This tension, between the value of historical precedent on the one side and the will of a majority of legislators who have been voted into office by a specific constituency on the other, is part an parcel of the checks and balances provided for in the United States Constitution. It may be that the attention which judges are supposed to pay to the historical precedents embodied in the common law is a factor which gets little attention during any given election, but that factor remains a characteristic of the American legal system which, by necessity, may effect the outcome of any given case.
A law library which housed every available legal precedent enunciated by the various courts over the course of the last 800 years or so would take up as much space as some city skyscrapers might have to offer. Over time, accordingly, the publishers of these opinions have developed a number of legal research shortcuts which attorneys have used to sift through this great body of case law. Legal research thus involves the often time consuming process of reviewing these digests, form books, topical guides, and search results made possible through the use of computer technology. There are billions of pages of published legal opinions that would need to be sifted through before any lawyer could be said to "know the law" in it’s entirety. Thus, in any given case, at least some legal research in bound to be necessary in order to check not only the state of the laws as passed by the legislature but to sift though that great body of common law precedent which the attorneys in each case are usually required to review and which the judges, in turn, will rely upon in rendering their decisions. |
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