Let’s face it: Legal research and writing can be a time-consuming endeavour. After all, which lawyer wants to spend hours attempting to uncover a “needle in the haystack” precedent, when they already have so much pressing work on their plate? This is especially so when there are so many different legal research resources which may need to be scanned to find the “right” case.
Indeed, one judge aptly described the predicament faced by lawyers in the following terms: “For a lawyer at the top of her field the work hours are often intense. Lawyers in a competitive work environment can regularly be required to work in very long continuous stretches up to ten or 12 or more hours per day on end, often continuing into the weekends and evenings. These working hours often involving considerable stress, for example, as urgent legal research is needed, or documents need to be negotiated and drafted for the impending closing of a corporate transaction, or preparation for direct or cross-examination of witnesses is needed each night and weekend prior to and during a trial.”[i]
In addition, conducting quality legal research often requires incurring significant expenditure (over and above the time-limitations).
- Free legal research resources have inherent limitations, with one judge accepting “that although CanLII can be a useful free resource, it is less reliable for noting up older cases.”[ii]
- Premium legal research resources can come at a prohibitive cost. For instance, in one case, it was noted that a British Columbia law firm was paying “Westlaw $1,666.67 per month for access to the legal resource database”.[iii]
- Often, the monthly subscription costs for premium legal research resources cannot be passed on to the client, with one judge noting that “Lawyers are, of course, entitled to charge fees for legal research. But they should not charge electronic subscriptions as a disbursement – any more than a lawyer should not charge clients for print subscriptions to the DLR’s or various law journals.”[iv]
Regrettably, the above considerations create a perverse disincentive for lawyers to prioritize effective legal research.
Nonetheless, legal research and writing remain a key component of any law practice and a powerful tool in the hands of the best lawyers. Indeed, locating the most favourable case-law can make a dramatic difference in outcomes, and correspondingly, your reputation and revenue. This requires access to the best legal research resources available, as well as the dedication of time to identify the correct search parameters and actually conduct the legal research.
- For instance, one judge noted that “computer-assisted legal research is a necessity for the contemporary practice of law” and that “Properly done, computer-assisted legal research provides a more comprehensive and more accurate answer to a legal question in shorter time than the conventional research methodologies, which, however, also remain useful and valuable.”[v]
- In fact, the courts have suggested that the failure on the part of a lawyer to use electronic databases to conduct legal research may amount to negligence: “I think that the view of computerized legal research as a mere alternative is no longer consonant with the reality of current legal practice. Such research is now expected of counsel, both by their clients, who look to counsel to put forth the best possible case, and by the courts, who rely upon counsel to present the most relevant authorities. Indeed, it might be argued that a lawyer who chooses to forgo computerized legal research is negligent in doing so. This is particularly so given that many law firms and indeed governments are now cancelling hard copy subscriptions to legal resources in favour of the electronic versions. The practice of law has evolved to the point where computerized legal research is no longer a matter of choice.”[vi]
- The result is that on every file, legal research should be the norm, not the exception. Thus, one judge noted that “It is unrealistic to expect lawyers to know all law on a subject and legal research is the stuff of all litigation. Courts rely on counsel providing the law on matter in issue and do not expect counsel to just cite legal principles off the top of their head. Clients would be ill-served if their lawyers did no legal research in every case and if the work has to be done there is no reason why it should not be charged.”[vii]
- Therefore, the duty to perform legal research is not limited solely to situations where a lawyer is making submissions to a court. Instead, legal research is essential from the pleading stage. Thus, one judge explained: “The preparation of a statement of claim as complicated at this one takes considerable planning” and that “Legal research is almost always required”.[viii]
- Moreover, another judge explained that “Before giving clients advice about the course of action to take, a reasonably competent lawyer must determine if there is a cause or are causes of action, and if there are, what those may be. This may require legal research” and “A reasonably competent litigation lawyer must do legal research to identify causes of action and heads of damage unless that lawyer is acting in an area that is well known to her. Based on the facts she has gathered, and the law she has reviewed, she then frames the Statement of Claim and gives advice to her clients on their options for going forward.”[ix]
A quandary arises from these competing demands (the lawyer’s need to conserve valuable time, money, and energy on the one hand, and the ethical, contractual, and practical need to conduct effective legal research on the other).
Fortunately, LexOutsource provides law firms with an affordable solution to this dilemma.
- Since 2011, LexOutsource has benefitted over 500 lawyers in every jurisdiction in Canada by offering comprehensive and affordable legal research and writing assistance to law firms on an “as needed” basis.
- Our team is capable of researching almost any legal or factual issue and drafting an end product in a number of formats (such as an objective memorandum for internal use or an effective and persuasive factum to file in court).
- We also draft pleadings, motions, affidavits, and much more.
- We can also assist laws firm through the various stages of representing a client in legal proceedings. For instance, if LexOutsource prepares an internal legal memorandum for a law firm, the completed product can then be used to draft a motion or factum.
The benefits to a law firm which retains an entity like LexOutsource for their legal research resources are well recognized.
- The American Bar Association has commented that outsourcing legal work is “a salutary one for our globalized economy. Labor costs vary greatly across the United States and throughout the rest of the world. Outsourcing affords lawyers the ability to reduce their costs and often the cost to the client to the extent that the individuals or entities providing the outsourced services can do so at lower rates than the lawyer’s own staff. In addition, the availability of lawyers and non-lawyers to perform discrete tasks may, in some circumstances, allow for the provision of labor- intensive legal services by lawyers who do not otherwise maintain the needed human resources on an ongoing basis. A small firm might not regularly employ the lawyers and legal assistants required to handle a large, discovery-intensive litigation effectively. Outsourcing, however, can enable that firm to represent a client in such a matter effectively and efficiently, by engaging additional lawyers to conduct depositions or to review and analyze documents, together with a temporary staff of legal assistants to provide infrastructural support”.[x]
- The types of services provided by LexOutsource have long been sanctioned by courts in Canada. Thus, one judge in British Columbia noted that “Providing there are no contrary instructions, a solicitor may retain the services of agents for legal research, filing or investigative work, or even other lawyers to perform legal work on behalf of the client.”[xi]
- Moreover, unlike the costs of subscribing to premium legal research databases, the costs of outsourcing legal research to LexOutsource can be passed on to the ultimate client as a disbursement (or alternatively, claimed from the unsuccessful party).
- “The hours spent on legal research is recoverable both as a component of counsel fee and as a disbursement.”[xii]
- This includes a situation where the law firm hires an independent legal researcher to conduct legal research. Thus, in one case, the court noted the “argument concerning disbursements is over the $6,000 for research by a legal researcher.” The judge found that “There was no duplication of time and the researcher enhanced [the lawyer’s] preparation.” Therefore, the judge concluded “that the research fee is properly part of the preparation for trial, and may be treated as a disbursement.”[xiii] In another case, the court summarily concluded that “a law firm might charge a disbursement for legal research done by an outside agency”.[xiv]
In addition:
- The services provided by LexOutsource are not confined to generic research and drafting. In fact, our clients often rely on our extensive knowledge and experience to supplement their own. For example, we can assist by offering ideas and developing strategies designed to give you and your clients the best possible outcomes on the matter. This has the added benefit of helping you to win cases by equipping you with the same firepower enjoyed by large firms.
- The effective delegation of legal research and writing tasks frees up time to devote to other important tasks facing your practice, such as managing existing clients, networking and building you client base.
- The cost structure offered by LexOutsource is flexible and affordable. For instance, we can either quote a fixed fee, or help set a budget for the entire project. In all cases, LexOutsource works for you. Thus, you the criteria, sets the deadline and controls the costs of the project.
- Regardless of whichever cost model you choose, by retaining LexOutsource, you will be protected from the regular and fixed cost exposure associated with (a) hiring another lawyer to handle your legal research, (b) subscribing to premium legal research resources, and (c) lost time on legal research which cannot always be passed on to your client.
To learn more about the benefits to law firms from outsourcing their legal research and writing to LexOutsource, please visit https://www.lexoutsource.com/why-us/.
[i] J.D. v. Chandra, 2014 BCSC 466 (CanLII) at para 181, affirmed in Crimeni v. Chandra, 2015 BCCA 131 (CanLII).
[ii] Wadden v. 470139 B.C. Ltd., 2014 BCSC 747 (CanLII) at para 33.
[iii] Wadden v. 470139 B.C. Ltd., 2014 BCSC 747 (CanLII) at para 31.
[iv] Dine v Biomet, 2016 ONSC 857 (CanLII) at footnote 4.
[v] Drummond v. The Cadillac Fairview Corp. Ltd., 2018 ONSC 5350 (CanLII) at para 10.
[vi] Aram Systems Ltd. v. NovAtel Inc., 2010 ABQB 152 (CanLII) at para 23.
[vii] 8527504 Canada Inc. v Liquibrands Inc., 2015 ONSC 6853 (CanLII) at para 5.
[viii] Worth v. Spelliscy, 2012 BCSC 1873 (CanLII) at para 48.
[ix] Malton v Attia, 2015 ABQB 135 (CanLII) at paras 91 and 108.
[x] American Bar Association, Formal Opinion 08-451.
[xi] McRae v. Johnston & Co., 2001 BCSC 946 (CanLII) at para 7.
[xii] Drummond v. The Cadillac Fairview Corp. Ltd., 2018 ONSC 5350 (CanLII) at para 10.
[xiii] 433583 Ontario Limited v. MTCC Corp. No. 935, 2011 ONSC 7377 (CanLII) at para 23.
[xiv] Atkinson v. McGregor, 1998 ABQB 629 (CanLII) at para 17.
