Having spent three years briefing, analyzing, and discussing appellate court opinions, the student has a solid background in the end-product of the judicial process. But, as law school educators are fond of remarking, he will not have been taught how to pack his briefcase or how to find the courthouse, a benign way of recognizing the troublesome fact that the student's experience in dealing with clients, in legal research and writing, in trial and appellate advocacy. As the lord chief justice of England recently commented, too often the fledgling lawyer "finds himself standing alone in the middle of a courtroom like a matador lacing his first bull, and probably profoundly wishing that he had taken his father's advice to become an automobile salesman instead.
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Upon completion of law school, the graduate will begin practicing law, in every sense of the word practicing. The bar has been spoken of as "the only profession where a person is qualified to carry on his business without ever having seen it conducted or knowing from the practical point of view how it is done. It may be that medical students are allowed to do too many things to the public before they are qualified, but at least there is a good deal of control over them and they are not licensed to kill. As soon as you are qualified [as a lawyer] you are, and if you win any cases in your first year it will be Providence and not you who secures the verdict for your client."
Surely any lawyer could illustrate the point with examples from his own early practice. Clark Clifford, former Secretary of Defense, presidential advisor, Washington lawyer, recalled his first case:
[It] involved a man named John Piper, who was charged with stealing an automobile. I spent three days trying his case. And oh, but did I prepare! I read the life of Clarence Darrow and other famous criminal lawyers, and I wrote out a ringer of a jury speech.
All this time I kept trying to forget poor John Piper. This poor fellow-he wasn't much older than I was, and there he sat, in the state penitentiary. I did my best to forget it, but each Christmas, just about the time I thought I'd forgotten about him, here would come a Christmas card from poor old John Piper in the state pen.
I kept on trying cases, and getting licked, until my twelfth or fourteenth came along, and I got a verdict-'I sprung one,' was the expression-and man, did I feel good. It was like being thrown into the creek by your dad to learn to swim; you consume an awful lot of water, but you learn how to swim.
An interne has to work on people to become a doctor, and he sends some to the graveyard. Well, I sent mine to the state penitentiary.
As Clark Clifford and every young lawyer learns, the only way an attorney can develop his professional skills is through the very practice of law. The amount of ground to be covered in a three-year legal education is already so extensive that there is no time to equip the student with the techniques of trying a case, of handling an appeal, or of any of tile multitude of practical skills necessary to practice law, even if such skills could be transmitted through the regular educational process. The one important exception is the ability to do sophisticated legal research and writing. It is this skill that the student must perfect while still in law school.
Legal research is the very foundation of the practice of law, for whether the lawyer be advising a client or handling a suit through the courts, he must know as precisely as possible what the law is. Even more difficult, the lawyer, after discovering what the law is, must then be able to forecast the trends of the law, for very often what a client really wants to know is not what the law is today, but what it will be at the time the problem under discussion is likely to come up for adjudication in the courts. This is what Mr. Justice Holmes had in mind when he said, "Prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." Legal research is the one area in which the young lawyer can match even an experienced opponent, and quite often the young lawyer can bring more concentration and prolonged labor to the heavy chore of research than can his more experienced adversary; once the basic skills have been acquired, the result will depend solely on the degree of care, precision, and tenacity with which an attorney attacks a problem. On a solid facility for legal research, a law school graduate can readily construct and develop the other attributes and skills of a qualified attorney.
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In 1955, it was estimated that the number of reported American decisions exceeded 2,100,000 and was increasing at the rate of 22.000 published decisions each year. In comparison, there were 5,000 opinions available to the legal profession of Coke's and Bacon's seventeenth century and only 10,000 English decisions 150 years later in the days of Mansfield and Blackstone. In comparison, in 1953 the Congress and forty-eight state legislatures enacted 29,938 statutes to add to the 931 volumes of existing statutes. Furthermore, during the same period federal administrative regulations were contained in over 41 volumes, and the annual reported decisions of only four of the multitude of federal administrative agencies exceeded in volume the reports of all the federal courts of appeal and district courts. To this plethora of official legal publications must be added the legal digests, encyclopedias, loose-leaf services, law reviews, and casebooks which perpetually pour off the presses. It hardly needs to be added that in the years since the mid-1950s, the sheer bulk of written law has increased explosively. For example, the number of criminal cases in federal courts rose 25 percent between 1964 and 1974 and during the same period civil case filings jumped by 55 percent. The business in state courts has grown apace, if not even more swiftly. Today, legislative bodies of every size across the United States spew forth new laws at the rate of about 100,000 per year and federal agencies are generating additional 35,000 or more new regulations a year.
This mushrooming mass of law has led to repeated calls throughout this century for codification, hut to date the work of the American Law Institute and the National Conference of Commissioners on Uniform State Laws to restate, clarify, and simplify the law has covered only a small portion of the corpus of American law. The use of computers to facilitate legal research looms as a potential solution to prevent the law from collapsing under its own weight, but the initial expenses involved in programming have inhibited their widespread use in the legal profession. While still in its infancy, computer-assisted legal research in which a lawyer can conduct a continuing dialogue with the computer by means of a communications terminal in his office will, with improved flexibility, ease of use, reliability, and speed, undoubtedly be the wave of the future. But even in that brave new world, the computer will be .only as good as the lawyer who operates it and the legal research skills the lawyer possesses.
A thorough facility with the techniques of legal research, coupled with the physical strength and mental resolution to scale the mountain ranges of reported judicial decisions and statutes, therefore still remains the most essential tool of a lawyer's professional equipment.
Not only is the sheer volume of the law overwhelming, but also the methods that have been developed to extract the law from the endless aisles of judicial records might, at first encounter, seem hostile and impenetrable. Far from unlocking the secrets of the law, these sources referred to as entry points into the law-a jumble of digests, encyclopedias, citators, reporters, indexes, quick indexes, annotations, codes, treatises, pocket parts, supplements, key numbers, loose-leaf services, reviews, slip decisions, restatements, and tables-might seem to exist solely as a labyrinth to impede one's search for appropriate precedent.
Regardless of initial appearances, the student, after he has gained some practical experience with the use of a law library will perceive the inherent logic and utility of the existing system of legal research. He will undoubtedly conclude that the real wonder of the law is that a system of entry was able to be developed that operates so efficiently and expeditiously, and that the seemingly impassable mountains of recorded law have been so well surveyed and their topography so carefully charted.
For simplicity, the legal literature with which lawyers are most concerned in their work may be classified into two categories: primary and secondary sources. Primary source materials include court opinions, congressional acts and legislative statutes, executive orders, regulations of administrative agencies, and rules of court. These materials are of either binding legal effect or persuasive force and therefore are those on which the lawyer places primary reliance in preparing a legal memorandum or brief. Secondary source materials include such texts as legal encyclopedias, treatises, and law reviews. These sources may serve as valuable aids in explaining the law or in providing a basic understanding of, or creative insight into, a particular segment of the law, and may also serve as case finders, that is. as points of entry into primary source materials. Also, a passage from a secondary source may serve as an excellent way to introduce a discussion of the more specific primary authorities, or as a means of substantiating axiomatic statements of broad legal principles.
Federal and state appellate court opinions and federal and state statutes are the most important primary sources of legal authority to which the lawyer must daily turn. Judicial opinions are gathered together in chronological volumes. The United States Reporter is the official edition of the United States Supreme Court decisions, while the Supreme Court Reporter and the Lawyers' Edition of the United States Supreme Court Reporter are privately published editions of the Supreme Court's decisions which also include additional special research aids and supplementary materials. The Federal Reporter contains all the decisions of the various United States Courts of Appeal, and the Federal Supplement publishes selected United States District Court decisions. The reports of the state courts are published in official reporters issued by each of the states, and also in an unofficial National Reporter System which divides the United States into seven regions and publishes together the state reports comprising each particular region.
To discover on-point cases, that is, cases that are factually or legally similar to the problem the lawyer is attempting to solve, from over three million chronologically reported cases, the researcher must turn first to case digests. Multivolume case digests divide the body of the law into several hundred topical categories which are arranged alphabetically, and which in turn are divided into thousands of subclassifications. Very brief abstracts of every principle of law contained in every reported case are grouped together under the appropriate subject classification. Through a detailed index of legally significant descriptive catch words, the researcher can locate the appropriate legal classification, which is assigned a key number, and then focus on the most relevant abstracts listed under this classification.
Indexes are the lawyer's initial point of entry into these case digests, as well as into all other legal sources, and the use the lawyer makes of them will determine the quality of his research. One method of using such indexes is to consider the problem or issue that is pending and then, before opening the index, to make a list of all the words, and their synonyms, which the problem or issue suggests-that is, the various things, acts, persons or places without which there could have been no controversy. Then, the lawyer may turn to the index and note whatever references appear for each word or phrase he has listed. Otherwise, if the researcher were to open the index first to the most obvious word and find no such listing, he would be tempted to conclude that there was no material on his topic of concern. For example, for purposes of illustration the West Publishing Company, which publishes the digests, presents the hypothetical situation of a referee at a professional wrestling match who is thrown from the ring in such a way that he strikes and injures a front row spectator. In analyzing the problem, the researcher, in turning to the descriptive word index of the case digest, might consider the parties involved and look under "spectator," "patron," "arena owner," "wrestler," "referee" or "promoter;" might consider the places and things involved and look under "wrestling match," "amusement place," "theater," or "show;" might consider the basis of action or issue and look under "negligence," "personal injury to spectator," or "liability;" might consider the defense and look under "assumption of risk;" or might consider the relief sought and look under "damages." Thus, even by approaching a problem from a number of different angles, the researcher should be led to the same result.
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