Context, Part 2

Comprehensive resources can be dangerous things.  Many humans are creatures of habit and will go to the usual well for their answers, but a well that produces fresh, clean water is not much use if what you really want is milk.  This can be especially pernicious for law students, who begin to get the idea that the entire universe of knowledge is contained within Lexis or Westlaw.  But not all the things a practicing lawyer needs to know are contained in statutes, cases, or treatises.

Consider the case of an accident in a warehouse – your client is injured in a forklift accident and there is some question as to the safety procedures and equipment.  “Quick – find me Jones on Forklifts,” right?  Certainly there is such a treatise in one of the big two databases, right?

Wrong.  Also silly.  But it would be a safe bet that most law students who have had an introduction to those databases would turn instantly to them and do a keyword search for “forklift.”  And there are undoubtedly cases galore having to do with forklift accidents.  Perhaps there are even mentions of such accidents in Prosser or other tort resources.

But what does our hypothetical law student really know about the operation of a forklift?  Doesn’t the fact pattern turn on the safety equipment and procedures?  Some judges can write wonderful, detailed, and educational factual backgrounds that give plenty of context for the cases they are adjudicating, but it is a safe bet that reading through them is a woefully inefficient way of looking for information on the topic of forklift safety.  The facts of the particular case at issue are potentially important here: they provide the context for the entire claim.

So, on the one hand we have a doubly expensive resource – a database that costs a great deal to use and is inefficient in terms of providing the factual information that will enable an attorney to assess the potential merits of the case.  On the other hand, there are more precise, non-legal resources that can give the attorney the factual grounding in an unfamiliar subject he or she needs (e.g. the public library, OSHA’s website, possibly even Uncle Fred who is a supervisor in a warehouse and has done this kind of work for 20 years).  Many or most of these are also free for the user.

Thinking about what sort of non-legal information is necessary to provide context for the claim can save a world of aggravation and grief and make the later search for legal authority far more efficient, cost-effective and fruitful.

(For people interested in teaching the combined use of legal and non-legal resources to solve legal problems, I can highly recommend Carrie Teitcher’s fantastic article, “Rebooting the Approach to Teaching Research: Embracing the Computer Age.”)

Context, Part 1

When I worked for the Nasdaq Stock Market, I would often meet with people who asked me a very basic question: “Is [this number] good?”  They didn’t mean, “Is this number correct?” they were asking for a qualitative answer.  They wanted me to evaluate the number they were handing me.

I always wanted to say something flip like, “Yeah – three is a very good number.  But five – look out for five.  Five will cut you.”

I kept my flippancy to myself and instead asked, “Compared to what?”  An earnings per share ratio that is phenomenal in one industry is anemic in another.  Context is key.

Likewise, the iterative and narrow way many people are used to searching for information in their daily lives tends to strip away the idea of context.  Looking for a phone number is not particularly complex.  Finding a restaurant review is fairly mechanical.  But the answer to a client’s question in the real world is not “Section 401(k) of the Internal Revenue Code.”  It is going to be application of that code section to a specific fact pattern.  It is going to be contextual.

I have read a great deal about how students (in general – not just law students) frequently have a much higher opinion of their ability to find things then their ability actually warrants.  Some blame the “Google-ization” of finding tools: plug in a few keywords, get an answer.  This piece of our current landscape probably does shift thinking: much of the “data in/data out” searching we do on a daily basis might as well be context-free.

Considering a fact pattern in law is not a matter of placing code or regulations or case law on top of the facts, but a complex and sometimes lengthy matter of analysis.  How does this law here relate to and intersect with that fact there?  If this fact changes, how does that affect the whole?  If the law changes, how will it shape the facts of behavior moving forward?

How does this type of analysis change and shape searching strategies and behaviors?  How do other forces (availability of resources, cost, time) shape those behaviors?  Just as in legal analysis, there really is no one answer.  It depends on the context.