T

his is an edited transcript of a guest lecture by Bryan Horrigan for the QUT Legal Practice Course on Client-Focused Legal Research, 14 March 2000 (edited by Research One, copyright Bryan Horrigan and QUT, reprinted with permission). Use of this article is subject to our usual terms and conditions).

Client-Focused Legal Research — Lessons From The Trenches

Introduction

What we're going to cover today is nothing about the technical side of research in terms of library skills and nothing about what you might have covered in undergraduate legal research courses …

We are going beyond that to examine how you actually go about doing research in practice, ways in which you would communicate the results of that research to clients, and thoughtful approaches to the different research-related tasks and how you go about completing them in terms of a template for legal advice.

1. The Changing Nature of Legal Practice

Let‘s set a starting point for discussion … You are about to go out into an environment in terms of careers which is much more fluid and much more various than it has ever been before. You are doing the Legal Practice Course here while some law firms are arranging for its employees to have a customised course of practical legal training for admission purposes delivered in-house and subsidised by those law firms. You are competing as newly admitted solicitors with articled clerks who are doing 2 years or more of in-house practical training. I asked partners up town this week in preparation for this lecture, ‘What's your view of Legal Practice Course graduates and College of Law graduates and people who come from these places?' One reply: ‘Oh well, they're pretty good but the reality is we like the articled clerks because they're doing the work in-house, they do it over two years, they get used to our way of doing things, and we feel they have more practical experience and they can do more things.' Well, I happen to think that view is a bit narrow and outdated, but that is one attitude you're encountering in the market-place. I am not saying that's the unanimous attitude. It underplays the range of practical skills across all areas of practice which people in practical legal training course receive, as distinct from a narrower, specialised, idiosyncratic, and not always balanced exposure to practical training, which articled clerks might receive in various rotations in both smaller and larger firms.

You are also dealing with the reality that the kinds of professional careers you are going to have will change. At the moment you are becoming qualified as solicitors, but what do solicitors do? You might think you are going to head into one-person practices, suburban practices, medium-size boutique practices. You might be thinking of heading into large law firm mega-practices. You might be aiming to spend some time there and then go and work for government as a lifestyle choice or for some other reason. You might be aiming to get involved in business and be the corporate lawyer or corporate counsel. You might want to be a manager like a human resources manager and you want to be able to have the legal skills because there is so much law that relates to that aspect of your job. You might be looking for legal work in the public sector, whether as a policy adviser, drafter of legislation, or departmental in-house lawyer. You may not stay in the one job, for all sorts of reasons. So, you're dealing with a situation where what solicitors do is now across a wider level of possible career scenarios than there have ever been before. You're going out where the bit of paper you're getting from here is viewed in different ways by those who in the next couple of years are looking to employ you, and where the world is changing around you in terms of what other people getting the equivalent bits of paper are doing.

2. The Broad Span of Research-Related Tasks and Client Services and Products in Legal Practice

You get out there in practice in the broadest sense, and you're then looking at research-related tasks. Think about what research means in the practical environment in which you're going to do it. The easiest things for us to focus on could be things like writing an opinion or doing a brief to counsel. So that might be some research. Or, you're going to do some research as a solicitor on a matter and you're going to do either an internal memo of advice for a partner or for some other supervisor, or maybe even an external memo of advice to go separately with a letter of advice to a client, or maybe to be incorporated within a long letter of advice to a client. Yet these are no longer the sum total of research-related tasks in legal practice. Yet again the world is quickly changing around you. These law firms, government organisations, and business organisations and accounting firms now have ‘you beaut' websites, and lots of the material on their websites is of various research-related kinds, whether it be access to links, hypertext links to the Internet, updates on the law and practice relevant to particular client areas written by the in-house lawyers, or even electronic tools and resources that firms and government organisations and business are increasingly making available as part of new services to clients. Clients can get the ‘Easy to Explain Guide to How the GST Affects You' or 'Compliance Made Easy'. Well, all of that starts with research. Somebody works out what the basic areas of regulatory compliance are—usually someone who is just starting off because the partners won't do this sort of stuff (they either won't or can't or its too costly to make them do it so you'll be doing the start-up work and they‘ll be there supervising what you've done)—and then someone with legal experience and training will step in to polish and practicalise it for communication to and use by clients.

We can go from that to talking about regular client newsletters, client seminars on topical issues, marketing initiatives in law firms, etc. We start to get a sense that there are a number of career-related contexts, no matter what you do, where you're going to be doing a wide variety of things related to research which won't just fall into the conventional categories of ‘I'm going to write a memo of advice or do a memo of advice'. And in the kinds of research-related activities that you'll be involved in, again there is a wide variety. The kinds of things that increasingly lawyers in the private and public sectors can do is not just the straight transactional advice or other form of advice to a corporate or individual client about how the law relates to them and what they should be doing. It's not just about transactional document-crunching with a bit of intelligence thrown in on the side. Increasingly, it comes across in other areas. For example, I know of a number of firms that are engaged regularly in putting submissions to government on behalf of business and corporate clients about law reform and changes in the law when it affects interests of their clients. I know a number of lawyers who work in community legal centres who are similarly engaged in those sorts of law reform aspects. For those who think you're going to go and work for one of the big commercial law firms and you'll never have to think about policy analysis or what people do in government or scrutinising legislation or fundamental legislative principles or anything, well guess again! I've just been involved in a couple of tenders in the firm where I consult, and the conditions for the tender from the government body are that there is going to have to be some policy advice and there is also going to have to be some advice to the government in terms of good legislation, and part of the conditions of the tender is to show that you've got someone on board who understands that sort of stuff. So to have an understanding of law and legal research and problem-solving skills and to think that you'll be able to confine yourself to just ‘black letter law' analysis of corporate, commercial, and other sorts of areas and that you'll be able to somehow compartmentalise your exposure to the other things I suspect is going to be, if not impossible for all of you, then increasingly hard to do.

So what do we do in light of that in the course of the next 45 minutes? Well, let us explore first of all how you think about legal problem-solving. Secondly, what I'd like to explore with you are some expectations that you will come up against in terms of doing research in practice. And thirdly I'd like to explore with you a template or way of communicating the results of research in a memorandum of advice.

3. Levels of Legal Theorising and Problem-Solving in Client-Focused Research and Analysis

For a moment, drop whatever intellectual baggage you might have about what you think legal research is about and what sort of levels you think you need to hit. There is a tendency for lawyers, particularly those going into medium to large law firms, to think that the skills of thinking that they need is confined to good knowledge of the basic principles of the law in those really commercially attractive areas and just crunching the law and working the rules, and that you'll never have to think about theory or conceptualising or whatever. Well, I think that's wrong, but what it leads to is a dichotomy in many people's thinking between theory over here—theory, jurisprudence, legal philosophy, stuff you had to study at university but you didn't really like it (‘chuck that, forget about it, it‘s not part of real law')—and, over there, real law and practice. Whether you are a single practitioner or a government lawyer or working in an accounting firm or working in a middle-sized or large-sized law firm, there are going to be problems that come across your desk where you are in the realm of argument and where the answer is not found in just looking up the cases and the policy statements and the legislation and the practice rulings and the stamp duty rulings and so on. Many legal situations are covered by that, but what will give you a lot of satisfaction and what will be required of you in crunch cases is something which goes beyond that into the realm of argument and, there, the way in which you look at problems is critically important.

So, I want to suggest to you that there are actually a number of levels of theorising, even in so-called ‘real-life practice', in which you'll have to engage. You might think at the highest possible level of bodies of interdisciplinary knowledge—things like law, politics, philosophy, economics and so on—and you might say ‘I‘ll never have to think about that in my problem-solving'. Yet the first time you‘re going to give advice on one of the most important pieces of legislation that solicitors give advice on, the Trade Practices Act , and the first time someone comes to you and says, ‘Well I wonder if this corporate entity that I'm dealing with is engaged in restrictive trade practices?', and you start talking about things like market power and abuse of market power and defining the market, you are in an area of the law where increasingly there is a mixing of legal and economic concepts. In fact, if you look at the most recent significant decision on tenders, a decision by Justice French in Stirling Harbour in the Federal Court … you will see the judgment merging the legal and economic concepts in the discussion of the application of those provisions to a tendering situation, which is one of the most important areas of modern commercial practice. So it's impossible for you to compartmentalise your theorising so that you get away from that. If you try to deal with it just in terms of the legal concepts, you are limited in what you grasp about whether or not there is misuse of market power.

At another level down, there is what we might call macroscopic jurisprudence—theory related to law. These are the things that some of you liked, many of you hated, many of you forget about when you go into practice—theories about law and justice, whether it be natural law, positivism, feminist legal theory, critical legal studies, postmodernism, economic analysis and so on. The strange thing is that ideas from that level percolate and permeate into legal argument on problem-solving. For example, you will not be able to avoid in practice as a solicitor at some point having to frame a negligence action or defend one and possibly having to consider economic loss. The most recent cases on economic loss in the High Court basically give up the ghost on trying to identify some sort of useful test or algorithm or tool which practitioners can apply in the certainty of their offices. And you will see attempts by the judges to basically say, ‘We‘ve all got different views on this, and all we can point to are a range of factors which will determine in any situation whether or not economic loss of a particular kind will produce liability'. When you go and have a look at the kinds of factors they're identifying, the factors are very woolly and open-ended but they're clearly grounded in some ideas and values that are associated with basically an orthodox, liberal view of law as taking a hands-off, laissez-faire approach to regulation, respecting things like noninterference with individual autonomy and non-interference with commercial bargains between voluntary and willing parties. Well, when you start talking about things like that, and notions like unconscionability and inequality of bargaining power and when the law will recognise that someone is in a position of special disadvantage, you glimpse that sometimes ideas and values from that level will then inform the arguments.

At the next level down, you have area-based theory. I suppose here we are focusing … not just upon theories of law and justice. We're focusing upon theories that explain a particular area of the legal system and the law. So it might be theories that explain the workings of government, whether it be theories of accountability, ministerial responsibility and so on. It might be theories of governance applied to both government and corporations in terms of their management and their activities.

At a level dawn from that is applied theory— for example, corporate governance, which is driving most of the corporate law reforms including CLERP and the changes in the Corporations Law recently. Corporate governance is an application of theories of governance to private sector corporations and government corporations. Applied ethics, codes of ethics, business codes of conduct that many organisations have—they are examples of applied theory.

At the next level down, we have the conceptual elements of law and policy. What‘s proximity? Is it an element of negligence? Is it a test? Is it a label? Is it something that just structures our understanding of the various factors that are in play? What does unconscionability mean? What does misleading or deceptive conduct mean? What does it mean to exercise a judicial discretion or ask for a judge to exercise a judicial discretion to grant or not grant a discretionary remedy on the basis that it would be fair, just and reasonable? What does that mean? They are all concepts. The blackest of black letter lawyers cannot avoid dealing with those kinds of concepts. If they say, ‘I never theorise in my work, I crunch documents and I solve client's problems', all they're saying is they recognise that they deal with the substantive elements of law and policy and they don't recognise that thinking about the conceptual elements in applying the law is also a level of theorising and conceptualising in legal practice.

The substantive elements we spend little time on here because it‘s what most of us are used to and it's most of what we identify with what we do as solicitors in practice. My lesson here is, if you think that that's all it is, then what's so special about you? We don't need you to go and find it. Someone could just now go and find the stuff using an internet search engine. We don't even need conveyancers or other people, we just need people who can intelligently use the software and bring out what the relevant elements of the law are and apply it by some sort of complex logical or mathematical algorithm.

What is special about you is that you will have skills—at the moment we are just talking about research skills and not all the other skills you'll have—which will cut across these levels hopefully and be able to be deployed for various purposes, some of which are client-related, some of which are related to scrutinising legislation, some of which are related to reform, some of which are related to other things.

Finally, you will need to think about the impact of the law you are looking at in terms of a microscopic view, where you look at basically a litigant-based view of the world. Your concern there is simply with the law and its outcomes in terms of its impact on these parties. And then beyond that, in a more macroscopic sense, you might be concerned with a more society-based or community-wide view, where you're concerned not just with the interests of these particular parties but with all of the interests that are at stake in the

community and what would be the best solution for the community, all things considered. This happens whether you are within government playing a policy advice role, whether you are pushing for this sort of reform from within the private sector, whether you are making proposals or submissions for clients, or whether you are just an interested lawyer or citizen in the community.

Now you might have a couple of reactions to that. You might say, ‘That's very interesting Bryan, but can we now get to the stuff I really want, which is that I want to copy down your advice template from 10 years‘ experience of doing research and I'll forget about that interesting stuff about levels of theorising once you leave the room', or you can say ‘What will this mean for me in terms of what kinds of things those who throw problems at me will expect that I can do when I come out not just with a law degree but with some sort of practical training?' or ‘What will it mean for me in terms of the kinds of levels on which I'm going to need to think to meet the expectations of those people who are looking to me to be a ‘leading edge', ‘cutting edge' (insert the cliché of your choice) lawyer in providing—whatever it is that the law firm brochures out there have been saying to undergraduates this week—creative, innovative solutions for clients?” Whatever else that means, it means being able to think on a range of different levels. I want you to think about what that means for you.

4. Common Partner and Client Complaints about Research-Based Letters and Memoranda of Advice

Let's connect all of this to my experience of some assumptions, expectations, and complaints that people often mention to me about the work of new law graduates and articled clerks. My perspective here is that, for the last 10 years, I have had a special role in training new articled clerks and new graduates. I have met people, for example, last week in the Sydney office of the firm where I consult, who are graduates from the College of Law , and talked to them about research in a practical context. I have a special role and interest in training them and finding out what they do and don't know about research. I also am privileged to hear the complaints that their partners make about them and the things they want improved when their staff produce some advice and a partner later comes to me and says ‘Look, I can‘t trust this, can you have a go at it'. And what I want to do is t o focus on some of the assumptions that you will confront once you are doing research in a practical context, and some of the complaints and other things that you will need to confront as well, so that you have a clear view of potential expectations. I'd also like to talk to you about some practical tips in what might be called ‘partner management' or, more impishly, ‘partner taming'.

Let‘s just imagine what you think you are going to confront. You've got a law degree, you've got some practical training, you'll be admitted as a solicitor and you're going to—let's assume the standard situation—work in some sort of law firm, even though I know that many of you will eventually want to do something else. There are some things you can be given which are easier to do than others up front. You will be doing file work and so on, but one of the easiest ways in which someone can test what you're like is to give you some sort of research-based task—abstract, large, small, with some knowledge of facts in a client situation or not—as a test of what you're really like. Now, what are the assumptions that rightly or wrongly those giving you those sorts of assignments will make? They might be giving you a task which is just wholly research-related or they might throw a file at you or give you a set of instructions and say, ‘Well you obviously need to do some searches and do some other things, but there are some issues here that need looking at as well so you'll need to run the file, initiate all the searches, get everything moving, prepare some documents, also do some research on these issues, and come back to me and we'll talk about it and we might need to make a few modifications to our standard precedents in light of that'. So that's the sort of integrated way in which your research-related task could also come together with something you‘re doing on a file matter.

That person giving you the work might make a few assumptions about you. They'll say: ‘Well, I'm going to assume that if you learned nothing else from having done the College of Law or the Legal Practice Course, you will at least remember basic principles of areas of law. You will remember what the basic causes of action are across torts and equity and contract and trade practices and so on and also basic principles within the various causes of action, whether it be negligence or trespass or nuisance or whatever. I'm going to assume that, just because you've been trained to think like a lawyer, particularly in practical ways now, you're going to be able to look at a problem outside an area of law you're ever looked at before and you'll be able to identify with reasonable precision what the major issues are. I'm going to assume that, if you learn nothing else from your four to five years at university plus your one year in practical training, on the research side you have the technical skills of research down pat, and that because time is money in practice you will know the right things to go to and the best things to go to in the right order with the minimum amount of fuss and the minimum amount of cost to me and the client. And that you'll be able to customise what you go to according to what the research task is—it's not always a case of just simply starting in topic or subject mode and going to a legal encyclopaedia or just surfing on the Internet and doing a case-based search and seeing what comes up.' (‘That's what I always do', some of you might say. Well that's just haphazard, wrong, inefficient, costly, and not customised to the research task at hand.)

So those are the common assumptions. There are others but they are the common ones. Now you will have to make an assessment for yourself about the extent to which those assumptions are unreasonable in relation to you, and whether someone ought to be allowed to assume those things in terms of your training and experience, but that's what they‘re likely to assume. It's not a lot to assume in terms of knowledge and understanding from at least four years in law and one year of clinical training. And they do it.

What sort of complaints do partners and supervisors make about the products of research in terms of the research memos that they get back, and what sort of complaints do clients make about what they get as legal letters of advice based on research or legal memos of advice? Well, the most common complaints that have been communicated to me are things like this. They say firstly that the person has written something which is just ‘too legal'. Hopefully, you are getting some exposure to all forms of legal communication for clients which will prevent you from basically going into ‘law assignment' mode and telling a legal story. But many lawyers aren't naturally trained not to write too legally, and they still do. There's more of an expectation now from clients that you won't write 'like a lawyer' whatever that means, but it's a hard skill for many lawyers and students to learn. I read lots of letters of advice drafted by lawyers (even partners) which are not crisp and focused and in easy-to-grasp language but which are really full of legalese. It's not as simple as just saying, ‘Oh well we have plain English documents and we write plain English letters.' It's not just about that, but it certainly is related to that.

I'll give you some examples of bad writing. I know people who will write letters to people with no formal legal training and who will not even think twice about saying things like, ‘you might have an action in estoppel‘ or 'you might have an action under s52 of the Trade Practices Act ‘. Are all clients supposed to know what that is? You know, you can mention words like Mabo as case names because everybody has read that in the newspaper. You can mention s52 to non-lawyers who are in business and who know what s52 of the Trade Practices Act is, but you don‘t make that assumption about everyone. It's all about working out who your client is, what their level of need is in terms of communication, and customising it accordingly. I worked for a partner who I thought was one of the most brilliant academically, intellectually, and practically that I had encountered, and I asked a client of hers why they thought she was so good. This client had said to me that ‘X writes great letters'. And I said, ‘Well why does X write great letters?' Part of what X used to do was to put in a paragraph what the whole problem was about and what the answer was and to then explain it in a turn of phrase which could be understood by anybody. So she would say things like, ‘We think you should do this—basically, if you do this you will get two bites at the cherry' or ‘What the other side is putting to you that you should be doing is Y and we really think you shouldn't be doing that because doing that is really like using a sledge-hammer to crack a nut.' Now I'm not saying to go out and start looking up cliché books. That partner had a lot that she had invested in the relationship and had a lot of practical runs on the board before she could start doing that. The lesson is that she wasn't afraid to work on the communication because she thought that it was that important.

Another complaint that will commonly be made is that you think you are pitching it at the right level of analysis but what you're doing is too superficial or too general—a very common complaint. You think the answers are up here, but someone with a bit more experience or a bit more precision in their understanding will say: ‘You think the answer is there but it's not, it's actually at two or three levels deeper down, and you've pitched the proposition of law up there and you've told me that the answer on unconscionability or trade practices liability or misleading or deceptive conduct or negligence or recovery for economic loss is there and it's not, because I know enough as an experienced practitioner who has given you this job to know that it‘s not pitched there but rather about two or three levels down and you haven't even spotted those levels.' I can't give you a magic solution for identifying or avoiding this trap of imprecision. I can only ask you to be aware of it. You will improve with practice. Another common complaint is that you've missed key issues. Again I don't have a magic panacea for this but part of it will be related to how you've studied law, part of it will relate to what you‘ve developed as problem-solving skills as you've gone along, part of it will be about natural intelligence (but not a lot), and part of it will be about the training you get when you start. The product of all of this is that you're going to get a whole heap of things thrown at you that are new. You've got to be able to work out afresh what's important, and what the relevant areas and causes of action are and what the issues are . I regularly get complaints that the new clerk, graduate, or lawyer has just not identified basic issues. It doesn't mean that you're expected early on to have picked up everything, but it does mean that there is a certain level of expectation about the range of things you are going to pick up.

Another common complaint is related to responsiveness, work management and two-way communication between colleagues. This comes from one partner who asked me to make sure that I would say this to the graduates last week. You're going to have all sorts of time pressures and file pressures and other sorts of management pressures on you. You're running hundreds of files at once, some of which have research, some of which have searches, some of which have got documents, and you've got all sorts of deadlines—reasonable, unreasonable, client-imposed, law firm imposed, personally set, and so on. One common thing that happens is that it all just comes crashing down at various times and someone comes to you and says, ‘Look, where's that thing, I've got a meeting with the client now' and you go, ‘Oh, I haven't gotten to it'. Well one thing that really gets up the partners' noses is when you don't allow them to stay in control. I mean, most lawyers are control freaks and, from a personal level and also from just a 'running the file' level, they want to be able to stay in control and to be able to make decisions according to where the work production line is going. If you've been given a task and they don't hear anything from you for a week when they know that you know what the deadline is, and they come to you and they need it and you haven't come back to them in the interim and said, ‘Look, I've got something else that's come in; I'm in a time conflict, should I do this for you or should I do that for someone else', and the first real communication you have after allocation of the work is that they come to you and say, ‘I need that, I've got the meeting with the client now or tomorrow', and you say ‘I haven't gotten to it'—well it just frustrates them to hell. Now that's not so much a research-related point I suppose as a time management and file management point.

5. Getting Instructions, Setting Deadlines, and Taming Partners and Supervisors!

There are more practical things that we should focus on in terms of getting instructions for research tasks. You could get instructions that come by letter from a client, where a partner says ‘Can you deal with this' and it can be a mix of practical things, like searches and file matters, as well as legal research on some tough issues—all of which needs to be integrated in your overall file management, deadline-setting, and ultimate advice and accompanying documents. That is a common way in which research tasks are integrated with other practical tasks in law and accounting firms. If you are really lucky, or your supervising partner has this kind of personality, you might receive a nice little memo in writing from the partner, who asks you to look at a specific issue and who frames it to some extent already for you. It might be a purely abstract legal question or issue which is unrelated to any knowledge of the facts, or you might be told a little bit about the facts and the basic situation confronting the client.

You might be called into someone‘s office and told, ‘Look can you go off and have a look at this', with or without any understanding of the facts. Many of you I suspect will do what we all do when we start. You're in there, you‘re scared, you don't want to look a fool, you‘re trying to understand what's being said to you at the same time as you're trying to write down instructions about it, you don't quite comprehend it, you don't really remember anything about the area of law, and you don't want to look foolish by saying, 'Oh look I'm sorry, our group shared around the workload in subjects and I didn't do that part of the course.' You're trying to assimilate this and deal with your own frustrations about it, and then you run away and hope that you'll be able to work it out in the library or that someone will tell you what to do.

Well, it just doesn't work like that. One of the most important things that you will have to remember is that you have a premium and usually ‘once only' opportunity at the point where you are receiving instructions. You need to do a couple of things at this critical early stage. I am here to tell you what no book can tell you and that is how to deal with that in realistic ways based upon my experience.

The first thing I do when someone calls me into a room to give me some verbal instructions is that I don't start writing immediately. I ask ‘Is this background or do I need to take notes?' Working for different partners, my experience is that some of them want to ramble on for 10 minutes about the facts and the background and then they‘re going to say, ‘And what I want you to look up is this abstract legal issue'. And you go ‘Oh well, okay right, well I didn't need to know and write down all of that'. Conversely, sometimes from the moment they open their mouth it's all important, so that's always the first thing I ask.

The second thing I do is that I will be writing down as they're talking; don't imagine that you'll just be able to walk out and retain it all. I write down key facts, key questions, key issues, and—importantly—the word-for-word instructions which I am receiving verbally from them. Of course, there is always a fine balance between listening and writing, and you don't want to be in the position of writing down furiously and mindlessly but not really understanding what you are being told.

The third thing I do is I stop them if I'm getting a sense that I really need to know a little bit more about the facts. My general rule is that the more I know about the facts the better. They might think that they can just give you an abstract research task—‘Oh look, you know, is there any recent law on unconscionability?'. Well, that could mean anything. Are we talking about unconscionability in relation to constructive trusts, relief against forfeiture of interests in land, unconscionable dealings, or what exactly? Moreover, are we talking about a contractual situation between two commercial parties, or alternatively a situation involving a poor, preyed upon consumer and a huge, well-advised, corporation with deep pockets? So you need to ask something about the basic facts and the context. The more you know about the facts from the file and the context and circumstances, the better your understanding, the better your overall experience, and the better quality of product you'll produce as an answer.

The fourth thing I do is that I summon up the courage to interrupt them if I am unsure about something in the narrative which they are giving or about the precise nature of the problem or what it is

precisely that they want from me. If you are not following what you‘re being told because you never studied that area or you've forgotten it or you just don't understand what they're saying in some crucial detail, you've got to find a way in which you save face but also communicate that to them and give them an opportunity to know that you're not following and that they need to help you to understand something. Giving instructions for research is a two-way street. Again, one of the biggest complaints is that, if you go away and don't say anything, they think you've understood. You go away, you do all the research, you bring back an answer, days later or a couple of hours later depending upon the need, they look at it and they go, ‘That‘s not what I want, you‘re off the track, that's not what I'm after'.

So, you've got to find ways which save your face but which also help you to deal with this. What can you do? Well, I think there are ways in which you can intelligently communicate that you need a bit of help. You can say things like, ‘Sorry, I've never done one of these before; is there anything I need to know in terms of basics or is there anything you suggest that I look at just to inform myself about these sorts of transactions?'. They'll either say to you ‘Oh yep, sorry, didn't realise you've never done one before—yeah, you‘re basically dealing with an A, B, C, & D, blah blah blah”, or they'll say, ‘Yep, look so and so did one of these last week, just go and have a look at their file.' Again, you've put them in control and let them know what they need to do to help you. If it's not about ‘I‘ve never done one of these' but it‘s just about ‘I'm just not understanding what you're talking about', you've got to say, ‘Look, I'm sorry, I'm just not quite following this—what is it that we're dealing with precisely?' You‘ve got to stop them. Of course, it‘s usually a lot easier and better for you in terms of creating impressions if you do not simply ‘play the victim' and dump it all back in their lap, but rather communicate to them precisely what you do and do not understand. So, you can say something like, ‘I think that what we are dealing with is a situation of A and B and C, where what's happened is X, Y and Z and the problem that's caused is P and Q—is that right?' This clearly demonstrates the extent of your understanding of the problem and the instructions and your willingness to know precisely what is involved in the task so that you can provide them and the client with the best possible answer.

The final two things which you've got to do—and I always make sure that these are the last two things that I raise and pin a supervisor or partner down on—are your understanding of the precise instructions about the research task required of you and the required deadline. I always make sure firstly that I repeat to them my understanding of what the research task is. So I will say to them before I go ‘Okay, let me see if I've got this right, what we're dealing with is a situation A, the bit of it that you want me to look at is B & C and in relation to B & C you want me to focus on X, Y, & Z. Is that right?'. You'd be surprised how many times they will say, ‘Uh, no— that's not quite right'. It's not because I'm stupid, because I'm not. You know, I‘ve done enough of these to know I'm not stupid. And it's not because they're stupid, because I've worked with enough of them to know they're not stupid either. It's just something about the two-way communication process, which occurs under all of the usual pressures of real-life legal practice, as well as the differences between what they might know and what I might not know about the client's history, the way in which this problem has arisen, the detailed facts of the matter, and so on. Giving instructions about research-related tasks and receiving those instructions in the detail and precision which is needed, involves a meeting of the two minds and a communication between the instruction-giver (ie them) and the instruction-receiver (ie you).

And the final thing I make sure I get is the deadline. You are going to have hundreds of tasks, research-related and others, so you‘ve got to have some sort of idea of a deadline. You must not let anyone give you any work assignment, not least of which is a research assignment, without knowing what the deadline is. If you ask ‘What's the deadline?', they'll say ‘Oh, as soon as possible'. You've got to find some way of pinning them down to a real deadline. I don't have any answer except the closest I've been able to come to it is to ask something like ‘When is this needed by the client?'. They can choose to lie to you and say ‘as soon as possible' or ‘tomorrow' when it's actually needed Tuesday next week, but if you are perpetually working under those sorts of ridiculous time-frames you will just burn out, or you'll soon work out when that partner is ‘crying wolf', so you've got to make sure that you've established a deadline and that the deadline is realistic.

Now if the task, once you start on it, seems to be bigger than you and the partner expected, there is no rule that says you can't go back to them midway through the process and say ‘I Just wanted to check with you, I've done A, B & C, C seems a lot bigger, do you want me to go off investigating that?' They might say ‘No look actually I know about that, I'm happy not to look at that at the moment, we're just giving preliminary advice' or ‘I've got someone else looking at that, you just concentrate on A & B'. Or they might say ‘Oh, I hadn‘t appreciated that, it‘s bigger than I expected, yeah C is important, you'd better look at C' and you'll say ‘Well, I know you're meeting the client tomorrow, can we give them a preliminary answer on A & B and can you say to them, we're still looking at C?'. And that still lets them stay in control and they can say ‘Yep, I'm happy to do that, you give me a memo on A & B and look at C after the meeting tomorrow'. It's all about staying in control and it's all about two-way communication. I know that sounds simple, but I can't tell you how often the basics are the things that people fall down on when it comes to actually doing research in practice.

I specialise in what is commonly and laughingly called ‘the 3-hour opinion' in the law firm where I consult. It is a major and national law firm which specialises in commercial and governmental matters across a broad range of areas of practice. Often, partners need someone trustworthy to look at a situation, do some basic research, form a view about whether or not there is a realistic legal problem, and give them their ‘best guess' within a limited time-frame, so that they can think about the options and strategies for a client before they recommend a next step in the course of a long and complex transaction or piece of litigation. In its caricatured form, the instruction comes from a partner like this: ‘Look, this is a really urgent and important matter, I need to be sure about the answer, if we get it wrong we will probably end up in court, the barristers and the judges will each have months to think about it and research it and write their opinions and judgments, but can you have a look at it and give me an answer in the next three hours before our meeting this afternoon with the client?!' Of course, nobody can really ever satisfy that kind of expectation in its extremist form . However, many of you will recognise something about that kind of situation in the kinds of time pressures and other pressures which you face in undertaking research for client-related purposes in real-life practice. You must strive to do the best that you can do within the limitations imposed upon you. If the task really cannot be done within the extremely limited time-frame that you have been given, then you must, firstly, try to communicate that to the partner or supervisor as soon as it becomes evident to you that the time-frame is unrealistic and, secondly, you must still progress the matter by going to them and saying something like, ‘You asked me to look at A, B, C and D, I've had time to look at A and B properly and I've formed a view about A and B; I've started looking at C and I have a few ideas about C and I haven't started looking at D yet; here's what I have found so far, where do you want me to go from here?'. You'd be surprised how many deadline problems can be handled in this way, as there are few deadlines which are final or ultimate deadlines in the sense that every single issue and answer has to be formal and final for the purpose of the next meeting or the next letter of advice in a matter with many steps and decisions before final advice and documents are sent.