Lawyers Interviewing Lawyers
by Inês Freixo
Critical analysis of legal texts has been – and still is – the favoured method for lawyers involved in a PhD project to conduct their research. In fact, this does not seem to be just a matter of personal preference. By exchanging experiences with other colleagues, I have been made aware that other law students, like me, were given little to no training on empirical research methods during their university years. In other words, researchers apply the methodology they feel competent to use. Notwithstanding the importance of being cognisant of the state of the art regarding their research topic, I believe there is growing frustration associated with the feeling that reality stays on the doorstep of our – oftentimes beautiful – law libraries.
But reality keeps knocking on the door, whether it happens spontaneously, in a casual conversation among peers, or in a more controlled environment, such as when a PhD candidate seeks guidance or other information provided by someone who she believes can help with her research. The truth is that lawyers frequently seem to interview other lawyers, even without being aware that they are doing so.
To be clear: Running some type of field research, such as conducting interviews, should not replace an exhaustive and rigorous literature review. However, it provides unique data that might complement, clarify or even contradict the previously-attained information. To take an abstract example, a PhD project dedicated to sentencing law should not overlook the need to talk to (or better put: interview) sentencing judges, parole officers, convicted persons etc. in order to complement the material gathered through the readings. Therefore, I believe it is crucial that lawyers are fully capable of conducting those interviews.
I myself have been in the above-mentioned situation a handful of times, and each time felt that I was not fully prepared, either to deal with the information that was presented to me or to profit fully from such interaction, since I lacked training on interviewing techniques.
Fortunately, research competence training for PhD students has become more interdisciplinary, and the Göttingen Graduate School of Social Sciences provided a welcome opportunity to study empirical research methods in the context of the Socio-Legal Lab workshop.
The structure of the Socio-Legal Lab aimed at exploring the interdisciplinarity of its participants. Researchers from social and political sciences and lawyers sat together at a table for four days and exchanged practices, ideas, frustrations and accomplishments. These discussions generated a constructive dialogue and fruitful feedback.
Each participant was assigned to prepare and present two readings during the workshop. The readings focused on both quantitative and qualitative methods.
One of the proposed readings was “Interviewing Lawyers: A Critical Self-Reflection on Expert Interviews as a Method of EU Legal Research” by Emilia Korkea-aho and Päivi Leino. The article is a methodological reflection based on the two authors’ research experience interviewing lawyers.
The authors identify three main challenges when it comes to interviewing lawyers: a) access; b) confidentiality; and c) control of research data. Even though these problems are not exclusive to interviews with lawyers, they – as the authors describe – occur more often when interviewing legal professionals. Overall, these comprise difficulties to reach a specific lawyer for an interview (both when it comes to physical access as well as to authorization to contact); the type of information a lawyer is willing or able to share with the researcher; and how much control over the researcher’s processing of such information the lawyer will demand.
Among the three main challenges outlined by the authors, I believe that confidentially matters are the ones that could raise most difficulties. As mentioned in the article “in literature, confidentiality discourse has been categorised into four groups: 1) concerns relating to protection from ‘harm’; 2) concerns relating to ‘privacy’; 3) concerns relating to the accuracy or integrity of research; or 4) concerns relating to ethical standards” (Korkea-aho/Leino 2019: 41). Only 3) and 4) refer to the researcher; it is vital that a researcher is able to comprehend and address such challenges. On a positive note, Korkea-aho and Leino point out that “lawyers are conscious of the confidentiality obligations they may have. In most cases, methods, ranging from anonymity to pre-publication rights, seem sufficient to protect the confidentiality of lawyer respondents.” (Korkea-aho/Leino 2019: 46). In practice, the use of the mentioned methods might prove determinant for the success of the interview.
In conclusion, a researcher should have in mind that she might – intentionally or by serendipity – encounter an expert with the potential of shedding light on some crucial point of her research. Once in this position she should in the first place, become aware that she is, in fact, conducting an interview. Thus, she should be able to steer the conversation to the areas regarding which the expertise of the respondent would be of value for the research (even in semi-structured interviews with open-ended questions). She should as well be capable of contextualizing clearly the concepts and ideas she wants to explore in order to profit from the common reference system shared with the expert. She should, later, reflect on the answers and, if that is the case, she should come up with ways to incorporate the given information into her project, being mindful of the potential confidentiality problems she has to overcome, as mentioned previously.
It is also worth mentioning that only certain lawyers with additional training will be conducting quantitative methods during their research. For others who prefer doing qualitative empirical legal research, a number of valuable methods are available, including case studies, (semi-structured) interviews, and courtroom ethnography. Participating in trainings such as the Socio-Legal Lab and reading (among others) the article by Korkea-aho and Leino offer additional means to unveil the vast world of qualitative empirical legal research.
KORKEA-AHO, Emilia; LEINO, Päivi, “Interviewing Lawyers: A Critical Self-Reflection on Expert Interviews as a Method of EU Legal Research” in European Journal of Legal Studies, SI, pp. 17-47.