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38
QUALITATIVE APPROACHES TO EMPIRICAL
LEGAL RESEARCH
Lisa Webley
I. Introduction and Background
Qualitative research methods are oIten identiIied with the social sciences and
humanities more generally than with the discipline oI law in particular. That is not to
say that lawyers do not make use oI qualitative research methods in their own
practice. Many common law practitioners are unaware that they undertake qualitative
empirical legal research on a regular basis the case-based method oI establishing the
law through analysis oI precedent is in Iact a Iorm oI qualitative research using
documents as source material. But qualitative empirical legal research goes Iar
beyond this kind oI research. This Chapter will not Iocus on common law legal
analysis oI cases but instead provide an insight into diIIerent qualitative methods,
many oI which have been used in studies examining people`s perception oI law and
justice (see, Ior example, Genn`s Paths to Justice study, 1999); lawyer-client
interactions (see Ior example Sarat and Felstiner`s study oI divorce lawyers and their
clients, 1995); alternative dispute resolution mechanisms and their relationship with
the legal system (see Ior example Davis et al.`s study oI the Iamily mediation legal aid
pilot in England and Wales, 2000, and Dingwall and Greatbatch`s observation oI
Iamily mediation sessions, 1991); gender, the legal proIession and proIessional
identity (Ior example DuII and Webley`s study oI women solicitors and career breaks,
2004); and legal aid and access to justice (see Ior example Moorhead et al.`s study oI
legal aid models and quality oI legal service delivery, 2000).
It may be helpIul to begin with a basic deIinition oI qualitative research. Kirk
and Miller (1986: 9) suggest that qualitative research
.Iundamentally depends on watching people in their own territory and
interacting with them in their own language, on their own terms. As identiIied
with sociology, cultural anthropology, and political science, among other
disciplines, qualitative research has been seen to be naturalistic,`
ethnographic,` and participatory.
By naturalistic Kirk and Miller mean that the research is conducted in its natural
context (oIten the Iield`) rather than in an environment constructed by the researcher.
By ethnographic they mean holistic (in an anthropological sense) and by participatory
they mean that the research subject plays an active part in the process. The latter is,
however, a contested point, as we shall examine later in the Chapter when we
consider analysis oI traces` documents constructed by those other than the
researcher Ior a non-research purpose, such as a media report or a policy document.
Qualitative approaches are distinct Irom quantitative ones in that:
Technically, a 'qualitative observation identiIies the presence or absence oI
something, in contrast to 'quantitative observation, which involves measuring the
degree to which some Ieature is present. .` (Kirk and Miller, 1986: 9).
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Consequently, qualitative research does not depend on statistical quantiIication, but
attempts to capture and categorize social phenomena and their meanings. Bauer et al.
(2000: 9) explain that:
One needs to have a notion oI qualitative distinctions between social
categories beIore one can measure how many people belong to one or the
other category. II one wants to know the colour distribution in a Iield oI
Ilowers, one Iirst needs to establish the set oI colours that are in the Iield; then
one can start counting the Ilowers oI a particular colour. The same is true Ior
social Iacts.
It is not possible to measure the Irequency oI a social Iact` until it has been identiIied
and deIined.
In qualitative research, the data are usually collected through three main
methods, used singly or in combination: direct observation, in-depth interviews and
analysis oI documents (Ior a discussion see May, 2001: 13873, Punch, 1998: 139
68; or Patton, 2002: 45). The data may take a number oI Iorms. It may include notes
made by the researcher that provide a detailed description oI what, where, and how
people did what they did, their interactions, processes etc., or a description oI the
researcher`s observations and reactions to text-based sources, sounds, video or
images. Data may also be in the Iorm oI a transcript or verbatim quotes oI what was
said by the research participants and the researcher, or what was written in the text
sources that s/he is examining. Consequently data may be derived Irom the research
participants or texts and images directly (in the Iorm oI quotes) or via the researcher
in the Iorm oI his or her reaction to or understanding oI what was said or written.
There are misconceptions about when qualitative and quantitative research,
and diIIerent modes oI data collection within those approaches, should be used. Some
have argued that qualitative methods should be used Ior exploratory research
(research that is designed to examine whether an issue, situation or problem exists and
iI so to deIine it) and quantitative research methods Ior explanatory research (research
designed to determine why or how an issue, situation or problem is as it is), but that
both types may be used Ior descriptive studies (research designed to describe an issue,
situation, problem or set oI attitudes). These rules` contain an element oI truth, in that
diIIerent Iorms oI research design and diIIerent data collection methods lend
themselves more readily to diIIerent types oI research question. But the rules` are by
no means determinative. It is possible to use qualitative research Ior exploratory,
explanatory and descriptive research and to draw causal inIerences Irom the data
assuming oI course that the researcher develops an appropriate research design, and
adopts an appropriate data collection method and mode(s) oI data analysis in order to
answer the research questions posed. We shall consider each oI these later in the
Chapter.
The discussion that Iollows is sub-divided into six sections. The Iirst section
considers the theoretical context and development oI qualitative research. It has not
been possible to look at any oI the issues in detail, or to give in-depth answers to all
the theoretical criticisms oI qualitative methods. The second section provides a brieI
overview oI aspects oI qualitative research design including sampling, validity and
dependability. The third section examines a range oI data collection methods
employed in qualitative empirical legal research, and the Iourth section outlines three
key modes oI data analysis: classical content analysis, discourse analysis and
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grounded theory method. The IiIth section provides a case study to illustrate many oI
the themes discussed in the previous sections Irom research design to research method
and data analysis. The Iinal section oIIers some conclusions about qualitative research
in the context oI empirical legal studies.
II. Qualitative Research Assumptions and Theoretical
Underpinning
It is diIIicult to provide a precise or widely accepted deIinition oI qualitative research
and the theory underpinning it because so much oI the terrain is contested. Most
researchers who conduct qualitative research would agree that it is socially concerned,
examines phenomena in their social settings (iI Iield work is being undertaken) and
considers those phenomena in context. Some argue that epistemological and
ontological diIIerences are at the heart oI the divide between qualitative and
quantitative research, and also at the heart oI the deIinitional diIIiculties within the
qualitative research literature. Epistemology, one`s understanding oI the nature oI
knowledge, and ontology, one`s understanding oI the nature oI being or reality (is
there one reality or several, or does each person construct their own reality?) aIIect
the way in which one conducts research, interprets data and reports Iindings. The two
methodological traditions rest on diIIerent epistemologies quantitative methods are
oIten associated with deductive reasoning while qualitative methods oIten rely heavily
on inductive reasoning. Deductive reasoning is based on a general hypotheses posed
beIore data collection begins whereas inductive reasoning seeks to derive general
themes or patterns Irom the data collected as the research progresses. But even those
generalizations are not without their problems.
The Iocus oI quantitative researchers on rigorous data-collection and modes oI
data-analysis is progressively being picked up by qualitative researchers intent on
increasing the acceptability oI qualitative research Iindings. But despite the
similarities between quantitative research and at least some qualitative research, the
basis upon which judgments are made in the two traditions respectively is oIten
viewed as being very diIIerent. Many purely quantitative researchers argue that
quantitative research enquires into observable, measurable, independent Iacts whereas
many purely qualitative researchers argue that they enquire into socially constructed
Iacts that do not have independence beyond the meaning ascribed to them by people.
This has been explained as an objective/subjective divide, or in terms oI a distinction
between positivist and intepretivist (or constructivist`) epistemological approaches.
However, there are other ways to categorize and delineate diIIerent Iorms oI
qualitative research. Patton (2002: ch 3) provides an extremely crisp and useIul
summary oI these and May (2001: ch 1) outlines the main points oI departure Ior the
various modes oI qualitative enquiry. Positivism considers people as the products oI
their environment and the researcher attempts to be an objective observer. The
researcher examines the environment and people`s reactions to it so as to understand
the environment Iar better. Interpretivism also considers people as the products oI
their environment but additionally as those who construct the environment through
their understandings oI it. Researchers Irom the intepretivist tradition are more
inclined to Iocus on an individual`s inner world, their understanding oI the world and
as such are less concerned about researcher objectivity as they believe that we all
construct our own reality.
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Broadly researchers have tended to divide into one oI two research traditions:
positivism and interpretivism. Positivism has tended to be linked to quantitative
research and intepretivism to qualitative research although there is no necessary link
between interpretivism and qualitative research and indeed there are qualitative
researchers (as discussed above) who undertake research Irom a positivist standpoint.
King, Keohane and Verba (1994: 3), Ior example, appear to be more closely
associated with the positivist conception oI qualitative research than the interpretivist.
One oI the diIIiculties oI linking positivism to quantitative research and interpretivism
to qualitative research is that it may suggest that quantitative data speak Ior
themselves because they are objective and that qualitative data require interpretation
and lack oI objectivity and thus validity. Quantitative data (statistical data) require
human interpretation to give them meaning (see Kritzer, 1996); qualitative data
sometimes need to be quantiIied to provide some understanding oI how Irequently
particular themes emerge within the data.
Natural science is grounded in positivism and researcher objectivity and social
science research has much in common with the natural sciences in this regard.
Durkheim prescribes, Iirst, that assumptions should not be made in advance oI the
research process and all preconceptions should be discarded. Secondly, he stipulates
that the phenomena to be investigated, and the way they should be examined, must be
determined beIore the research is undertaken but aIter previous research Iindings have
been considered. He claims that the research process should be objective in the sense
oI being value-neutral and capable oI revealing the truth about a given proposition.
This is in keeping with the hypothesis-testing quantitative tradition in social science
research, which is redolent oI natural science. Some qualitative researchers adhere to
these tenets and thus consider that iI done well, both qualitative and quantitative
Iorms oI research can be systematic and produce valid, dependable Iindings. King,
Keohane and Verba argue that qualitative research is just as capable as quantitative
research oI producing valid descriptive and causal inIerences (1994: 3), both being
underpinned by the same logic oI inIerence even though the two styles and techniques
oI research may be diIIerent.
However, researchers allied to interpretivism argue that positivist approaches
to research may Iall short when it comes to understanding and revealing the layers oI
social meaning and context that underpin social behavior and practices, which in turn
produce and reproduce structural relations over time. The method oI understanding
people`s meaning, whether it is the meaning that they attach to their own actions or
the meaning they attach to other people`s actions, Max Weber called verstehen. He
considered this to be the method that all social sciences should Iollow. Many
qualitative methods draw upon this understanding oI social research. But iI people
construct their own meaning, where does that leave the researcher who seeks to
understand others` meanings? LoIland (1971) argues that the role oI a qualitative
researcher is not to interject one`s own view but instead to describe accurately
another`s experience so as to elicit what the research participant believes or
understands, and to provide quotes as evidence, rather than to judge through one`s
own lens what that person must think or Ieel. This requires empathy rather than
distance, even iI that empathy should be derived Irom a place oI neutrality (Patton
(2002) coined the phrase empathic neutrality: 50). Some argue that stripping away the
context in an attempt to achieve objectivity may in Iact undermine the research, the
analysis and the Iindings (see Ior example Bourdieu, 1992 and GoIIman, 1981: 122).
What does that mean in practice? It means that in order to really learn Irom others,
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one may need to interact with them rather than to remain entirely distanced. The
researcher collects data by way oI describing what she has heard or witnessed in a
neutral way and without personal judgment. An intepretivist researcher would argue
that her analysis will always reIlect her own Irame oI reIerence, because no-one is
capable oI being objective, all meaning being socially constructed. She would argue
that to deny this is to deny the opportunity Ior the researcher to uncover and to
critique her own understanding, which is an important part oI interpretivist research.
Interestingly, at the same time as qualitative research has become more
complex and divided in its theoretical underpinnings and understandings, a less
clearly theoretically deIined method oI qualitative research has become increasingly
popular and appears to appeal to researchers Irom diIIerent traditions. This is known
as grounded theory. The grounded theory research method seeks to collect and
analyze data in such a way so as to generate theory Irom data sources using a constant
comparative method. It requires the researcher to revisit her descriptions oI
phenomena to examine whether they have continued validity or need amendment. The
method appears to be broadly positivist in its underpinnings. However, the way in
which the researcher extracts data Irom the data sources appears to have more in
common with interpretivism, at least in the practice oI some researchers (as discussed
below). Grounded theory thus appears to skirt around many oI the theoretical debates
on epistemology, although they are hidden under the surIace.
III. Research Design
Research design is a Iundamentally important Iactor in any research project, including
qualitative studies. However, research design may need to be more Ilexible and
adaptive to changing circumstances and understandings when research is conducted in
situ Ior example, when observing a mediation meeting or a client meeting taking
place in a solicitor`s oIIice. In design terms, qualitative research unIolds it develops
as the researcher learns more; in other words the experiment is not usually set up and
then allowed to run along a predetermined course. Instead, the research may be
redesigned to meet changing conditions, perceptions and Iindings. This means that the
research design may be relatively Iluid; the parameters oI the study and the approach
and methods adopted may have to be amended to accommodate altered
understandings and changing dynamics. DiIIerent researchers embrace such change
more or less willingly. Some will consider a Iluid method to be a positive beneIit,
indicating the responsiveness oI the research and the researcher, while others may
experience rising panic that they are losing their grip on the study.
There are Iive basic aspects oI designing a qualitative empirical research study
once the researcher has Iramed the question to be posed in the research. First, the
researcher needs to determine the methodology that is the most appropriate to answer
the question within any constraints such as limited access to data, ethical
considerations etc. A researcher will consider whether a case-study method, surveys
and interviews, participant observation and ethnography, documentary analysis, or a
combination oI such methods is likely to answer the question most eIIectively. Data
may be generated by examining documents that are already in existence, through
interview transcripts, through audio or visual recordings or pictures, through
observation notes, or through survey instruments or a number oI sources in
combination. Secondly, the researcher will need to consider how to select her research
subjects or documents and how many to select, in keeping with the data collection
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methods that she has chosen to adopt. The third aspect concerns how the data are to
be analyzed. Will the researcher use a grounded-theory method, content analysis,
discourse analysis, thematic coding, historical or linguistic analysis, or statistical
analysis? Will this be done using pen and paper or with the aid oI a computer? Fourth,
ethical considerations must be at the IoreIront oI the researcher`s mind, as the Iirst
rule is to try to do no harm to participants and iI possible to do some good. Finally,
the researcher may need to take into account whether they are working alone or in a
team, as this may have an impact on various aspects oI the research design. In order to
answer the research question as Iully and reliably as possible, it is important that all
Iive aspects dovetail and are in tune with each other.
There are a number oI research strategies, including experiments (in empirical
legal research these will oIten take the Iorm oI simulated situations), historical
analyses, interviews and surveys used to determine views and perceptions, case
studies, documentary analysis (which could include historical analysis) and analysis
oI researcher-generated or extant statistics such as cost/beneIit analyses. At one time
it was thought that particular types oI data were more appropriate Ior diIIerent types
oI research question: qualitative data was thought more useIul the more exploratory
the research, while quantitative data was thought more useIul the more descriptive or
explanatory the research. Particular research methods became allied with particular
types oI enquiry: interviews and case studies became linked with exploratory
research, and experiments and surveys with descriptive and explanatory research. Yin
(1994: 3) argues that over time these assumptions have been replaced by a more
nuanced appreciation oI the relative merits oI the diIIerent research strategies and
research methods. He argues that more important than the type oI research being
undertaken is the Iit between the strategy (case study, archival analysis, survey etc.)
the Iorm oI the research question (why, who, what, where, when, how etc.?), whether
the research Iocuses on contemporary or historical events, and whether the researcher
needs to have control over participant behavior or events or, by contrast, is operating
in a naturalistic setting in which lack oI control poses Iew iI any problems (1994: 6).
Genn indicates that some researchers may consider a quant sandwich` more
appropriate, combining qualitative exploratory work, Iollowed by a quantitative
survey, which is then Iollowed up with in-depth interviews (2009: 231). Kritzer
considers that it may be useIul to undertake qualitative research aIter quantitative
research, so that the nuances oI and mechanisms underlying the themes that have
emerged during the quantitative phase may be examined in more detail (2009: 272).
A. Sampling
All researchers need to consider whom to interview, or what to observe or analyze,
and how many participants or data sources are necessary to elicit Iindings in which
one may have conIidence. In other words, has the researcher interviewed a suIIicient
number oI people or observed suIIicient instances in order to capture a spectrum oI
viewpoints and experiences and to be able to report Iindings that report the nuances oI
experience rather than a narrow perspective? As a rule oI thumb, quantitative methods
rely heavily on the collection oI large quantities oI data Irom an entire population, or a
random or representative sample, in a systematic Iashion. Such data are analyzed
statistically so that conclusions may be drawn to prove or disprove one or more
deIined hypotheses. II the data do not cover an entire population, it is important that
they are Irom a suIIiciently large and representative or random sample oI that
population, iI the researcher wishes to argue that conclusions can be drawn Irom the
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data about the entire population. This is what political opinion polls are intended to
do. Pollsters hope that by selecting a representative or random sample oI the
population oI interest, asking respondents careIully worded, unambiguous questions
in a consistent way, and analysing that data using appropriate statistical techniques,
they will be able to generalize to the entire population oI interest. Quantitative studies
that have been well designed and well executed should produce Iindings that are
generalizable to the population iI an appropriate sample has been drawn Irom that
population. (see Black, 1999: 27139).
In contrast, qualitative research tends to Iocus on a smaller number oI
observations` or data sources`, whether people or events or documents, which are
considered to be data rich and thus worthy oI study, and to examine them in-depth.
There are various sampling techniques that may be employed. Some qualitative
researchers may adopt versions oI representative or random sampling used by
quantitative researchers. Others may adopt an intentionally stratiIied sampling method
in which they ensure that the research sample includes (Ior instance) people or
documents in key categories. For example iI the research concerns the views oI legal
proIessionals, the sample may include a certain number oI judges, a certain number oI
advocates and a certain number oI transactional lawyers in order to capture a Iull
range oI views among legal proIessionals. The researcher may opt Ior a snowball
sampling technique, meaning that she will begin with a group oI research participants
known to her (or otherwise identiIied in advance in some way), and then ask each to
provide details oI someone else whom they consider to be a good research subject Ior
the purposes oI the study, and in that way gradually build up a larger sample oI
participants. Alternatively the researcher may seek out key people or events that are
likely to provide rich sources oI inIormation or data. Patton describes this as
purposeIul sampling` (2002: 45).
Qualitative researchers are not (usually) concerned that these people or
situations should be statistically representative because they do not seek to reach
Iindings that are generalizable to an entire population. Instead, Iocused, in-depth
studies are designed to go beyond description to Iind meaning, even iI that meaning is
related to an individual`s experiences oI the justice system (Ior instance), or the
perceptions oI a small number oI people on access to justice (Ior instance). In-depth
research aIIords the researcher the opportunity to learn how research participants
understand the world and interact with each other. A well designed study will usually
also provide Iindings that capture a broad range oI experiences rather than those Irom
only a Iew people or situations. The Iindings will be representative in the sense oI
capturing the range or variation in a phenomenon, but not in the sense oI allowing Ior
the estimation oI the distribution oI the phenomenon in the population as a whole. The
extent to which the researcher truly gets to grips with, say, clients` experiences oI the
quality oI the work undertaken by their solicitors (see Moorhead et al., 2000) will
depend to a great extent on the research method employed, the rigor with which it is
executed and also one`s epistemological perspective. Once again, iI the study has
been well designed and well executed then the Iindings should be valid and
dependable, but that does not mean that they will be generalizable. The Iindings
should provide insight into a phenomenon and the extent to which it is present or
absent; but unlike quantitative research, qualitative Iindings rarely provide a measure
oI Irequency oI occurrence.

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B. Validity, reliability and dependability oI qualitative research
As discussed above, quantitative research methods have been closely linked to the
natural sciences, and judgments about the quality oI research have tended to adopt this
perspective. Validity and reliability are both terms used extensively in respect oI
studies that make use oI quantitative data. Validity is a measure oI the extent to which
the researcher has captured an accurate reIlection oI a phenomenon. Reliability reIers
to the extent to which the measurement procedure or instrument (such as a survey)
would produce the same data were it to be administered at a diIIerent time or by
someone else. (Kirk and Miller, 1986: 412). Taken together, reliability and validity
determine the extent to which the research, iI done by someone else or in slightly
diIIerent conditions, would lead to similar data (reliability) and whether the Iindings
that Ilow Irom that data would provide an accurate reIlection oI the phenomenon
being researched (validity). The terminology oI validity and reliability are derived
Irom positivist rather than interpretivist conceptions oI data and data analysis.
Interpretivist researchers argue that there are some diIIiculties with applying positivist
interpretations oI reliability to qualitative research, which is less concerned with
quantity and distribution and more with people`s understandings oI the meaning oI
social Iacts.
In addition, in much qualitative research the researcher is the data collection
tool as well as the one who analyzes the data. In other research the researcher may
construct a data collection tool (such as a survey), which captures the data at one step
removed Irom the researcher. The extent to which the researcher is a stable and
reliable data collection tool depends on his or her training and experience. Also
important are the extent to which she is willing to pilot her method, to make
adjustments in the light oI the pilot, to be reIlexive and to report on the strengths and
weaknesses oI her research, to be speciIic rather than too sweeping in her Iindings,
and to provide evidence in support oI points to allow others to check the extent to
which she has drawn acceptable conclusions Irom the evidence. Rather than using the
concepts validity` and reliability`, some researchers preIer to assess the
dependability and integrity (some would say trustworthiness or the extent to which the
research and its Iindings are Iree Irom bias) oI qualitative studies in terms oI the
questions posed, the methods used, data generated, triangulation (the combination oI
methods and data types), modes oI analysis and whether the evidence supports the
Iindings. Some argue that qualitative research has much to learn Irom quantitative
conceptions, and others such as Kritzer (1996) argue that quantitative research has
much to learn Irom qualitative research. However, both traditions` tests Ior quality
encompass an assessment oI the research design, the data collection method and the
data analysis in order to judge validity and dependability/reliability oI the Iindings
and thus are essentially similar. The next section will consider data generation and
collection methods.
IV. Qualitative Data Generation and Collection Methods
Well done qualitative research should add to our understanding oI individuals`
experiences and behavior, or oI structures and organizations, or oI other social
phenomena. Various research methods will support diIIerent types oI Iindings,
because diIIerent methods provide diIIerent insights. This section will consider some
key data collection and/or data generation methods, concentrating on those that are
more widely used in qualitative empirical legal research. Selection oI data-collection
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methods is largely dependent on the research question, leading to the research strategy
(design) that best Iits the research objectives, the availability oI access to particular
data sources and the resources available to conduct the study. Ethical issues also play
an important role in choice oI research subject and research method. The Iollowing
sub-sections will Iocus on individual and group interviews; observation and
participant observation; document analysis; and case study research.
A. Individual and group interviews
Individual and group interviews provide researchers with access to others` (memories
oI) experiences and perceptions. Interviews may be conducted Iace-to-Iace or
remotely (via telephone or video link). Individual interviews are used extensively by
qualitative researchers examining legal phenomena, and perceptions oI law and the
legal proIession (see Ior example: Sommerlad, 2007; Thornton). Focus groups (group
interviews) are one oI a range oI qualitative data collection methods that may lead to
both useIul data and truly participatory interviewer-interviewee interaction. roups
are not fust a convenient way to accumulate the individual knowledge of their
members. They give rise synergistically to insights and solutions that would not come
about without them. (Brown et al., 1989: 40). They are used less Irequently in
empirical legal research than are individual interviews, probably in part because oI the
negative connotations associated with their use in the party political arena, and in part
because they are logistically more diIIicult to organize and require a skilled Iacilitator
(Ior an example see DuII and Webley,, 2004).
Some general rules apply to qualitative interviews. For instance, they should
be either very loosely structured (the researcher may make use oI prompts to steer the
discussion through a series oI issues deemed important by the researcher) or only
semi-structured (the researcher will have some set questions to ask but the majority oI
questions will be open-ended rather than closed). II the respondent consents,
interviews are generally taped where possible to allow the researcher to analyze the
Iull transcript. Interviews are extremely eIIective at garnering data on individuals`
perceptions or views and on the reasoning underlying the responses. They also
provide an insight into individuals` experiences. However, they do not provide good
data on the interviewee`s behavior (other than behavior in an interview setting)
because oI problems oI memory and selective recall. Having the interview observed
by a third party may assist the researcher, iI the study is to examine behavior or
interactions between research participants (Dingwall and Greatbatch, 1991).
B. Third party and participant observation
Observation research is Iraught with methodological and ethical diIIiculties iI
people know that they are being observed then they may consciously or
subconsciously alter their behavior (known as the Hawthorne eIIect). But covert
research poses signiIicant ethical problems. Some researchers, principally
ethnographers, may immerse themselves in a situation Ior an extended period oI
weeks, or even months or years, and keep a journal to note their observations. The
researcher may even participate in the environment rather than observe as a bystander.
This Iorm oI research has the beneIit that research participants over time become less
aIIected by researcher presence and revert to more usual patterns oI behavior.
However, it is also argued by others that research derived through participant
observation may be tainted by the lack oI critical reIlection. Many ethnographers
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would argue that going native` is a positive rather than a negative oI this type oI
research, as it yields Iar better data, as long as the researcher remains reIlexive (she
examines critically her assumptions and motives). Becker and Geer state:
The most complete Iorm oI the sociological datum, aIter all, is the Iorm in
which the participant observer gathers it: an observation oI some social event,
the events which precede and Iollow it, and explanations oI its meaning by
participants and spectators, beIore, during and aIter its occurrence. Such a
datum gives us more inIormation about the event under study than data
gathered by any other sociological method. (1970: 133)
Dingwall argues that observation provides data that cannot be collected via interviews
(Dingwall, 1997). One study that drew upon participant observation in the empirical
legal arena is Flood`s research on barristers` clerks (Flood, 1983).
Others preIer to observe Irom a more independent standpoint, as an outsider
rather than as a participant. This Iorm oI observation is more likely to be episodic
rather than continuous, in that the researcher observes a speciIic event or events Ior a
relatively short period. Advocates oI this research method consider that it combines
some distance with a wealth oI opportunities to collect contextualized, rich,
description oI the setting and quotes Irom those being observed. Eekelaar et al.`s
study oI divorce solicitors employed this Iorm oI observation along with other data
collection methods (discussed in detail below). Observation notes seek to capture the
detail oI the scenes observed, along with researcher perceptions oI those scenes. They
should be suIIiciently detailed to Iorm the basis oI reports that take the reader into the
scene observed, and allow him or her to share the experience and learn Irom it as
much as is possible through the written word. But access can be diIIicult, and the skill
oI writing Iield notes requires considerable practice (see Flood, 2005). Some
researchers choose instead to tape record the interaction among research subjects
(with consent) as well as to make observation notes (see Sarat and Felstiner, 1995).
C. Qualitative document analysis
Documentary analysis can provide a wealth oI data, ranging Irom the oIIicial to the
personal, the text-based and the image based. Documentary sources, other than
primary legal sources such as cases and statutes, are relatively under-utilized in
empirical legal research even though they provide a rich source oI data (Ior an
example see Webley, 2008). May notes that,
Documents, as the sedimentations oI social practices, have the potential to
inIorm and structure the decisions which people make on a daily and longer-
term basis; they also constitute particular readings oI social events. They tell
us about the aspirations and intentions oI the period to which they reIer and
describe places and social relationships at a time when we may not have been
born, or were simply not present. (2001: 1578)
The apparent reluctance oI empirical legal researchers to use non-legal documents as
sources oI data may in part be explained by the many diIIering conceptions oI what
constitutes appropriate method and about the reliance that can be placed on
documents as sources oI data. It may also indicate that researchers have not Iound
documents that they consider useIul data sources Ior the research.
11
There are many approaches to document analysis, and there is insuIIicient
space to discuss them here. The mode oI analysis (the way in which data are extracted
Irom the documents) will in part depend on the nature oI the documents, Ior example
whether they are Iormal communications (case reports, legislation, newspaper articles
or policy documents) or inIormal communications (solicitor Iile notes, private letters
etc.). Some researchers may consider the context within which the documents were
written and their intended audience. Others may examine the substance oI the
document but not its context. Some researchers have developed a checklist oI
questions that they believe the researcher should ask beIore documents or images are
selected, reviewed and analyzed (see Ior example Finnegan`s list oI eight questions,
1996: 1469).
Documentary analysis has been criticized on a number oI grounds. Some
argue that documents are not susceptible to scientiIic, systematic analysis in keeping
with positivist traditions. To what extent can one draw conclusions Irom these
documents? For some, documents reIlect or report reality, describing an event, a
perception, or an understanding (May, 2001: 158). An alternative view is that
documents represent the practical requirements Ior which they were created or, in
other words the purpose oI the document. A third conception is that documents do not
report social reality as such but are a source oI meanings, we now utili:e our own
cultural understanding in order to 'engage` with 'meanings` which are embedded
in the document itself. (May, 2001: 163) This conception requires the researcher to
elicit the meaning oI the words as used in the document rather than to use the
researcher`s own understanding oI the words and their meanings. However, this
approach can lead to the conclusion that the document represents nothing but the
words and meanings within it. For many researchers, documents provide evidence oI
policy directions, legislative intent, understandings oI perceived shortcomings or best
practice in the legal system, and agenda Ior change (see Bloch, 1992 Ior a discussion).
D. Case studies
The case study may be either an umbrella strategy that combines a range oI data (Ior
example survey data, interviews, documentary or historical analysis) or a distinct
method oI undertaking research. Yin describes a case study as an empirical study
that investigates a contemporary phenomenon within its real-life context, especially
when the boundaries between the phenomenon and context are not clearly evident.
(1994: 13) A case study may use either qualitative or quantitative methods or both.
Yin argues that case studies come in three types explanatory, exploratory and
descriptive. He considers that they are best used to answer how` and why` questions
through in-depth analysis oI one situation, event or location. They are useIul when the
researcher has little control over the situation that she wishes to interrogate or when
the researcher wishes to test a hypothesis that has been based on a broadly accepted
theory (i.e. when the theoretical underpinning oI the hypothesis is not itselI the
subject oI the enquiry). But, case studies are Iar Irom an easy option. Although only
one event, or case, or organization, or situation may be considered, it must be
examined in great detail, relying on as many data sources as possible. The use oI
diIIerent data sources collected using a range oI research methods assists in reducing
the possibility that the research will lead to misleading Iindings based on an
incomplete picture. The process oI using multiple data sources to reach well rounded
conclusions is known as triangulation. This adds weight to any Iindings. Researchers
may choose to examine more than one event, situation, case or organization using a
12
case-study Iormat, although because the research must Iocus in depth on each one, it
may be prohibitively time consuming to undertake case studies Ior a large number oI
situations or events (see Yin, 1994). The single case study has its roots in
anthropology whereas multiple case studies have been more usual in sociological
research (see Hamel et al., 1993: ch 1). Case-study research is designed to Iocus in
detail on a given situation rather than to provide Iindings that are generalizable to
other situations. However, it may be possible to reach a general conclusion by testing
the Iindings oI one case study by undertaking another, or iI the speciIic case
represents what Yin has reIerred to as a critical case`.
The next section will consider three oI the main methods used to analyze the
data, whether the researcher`s own Iield notes, observation journals, interview
transcripts and so on, or documents developed by others.
V. Qualitative Research Analysing the Data and
Finding Meaning
Data analysis and the drawing oI conclusions and Iindings Irom the data are among
the more contentious aspects oI qualitative research. How can one derive valid and
dependable Iindings Irom reams oI observation notes, interview transcripts or
documents? As Miles explains,
The most serious and central diIIiculty in the use oI qualitative data is that
methods oI analysis are not well Iormulated. For quantitative data, there are
clear conventions the researcher can use. But the analyst Iaced with a bank oI
qualitative data has very Iew guidelines Ior protection against selI-delusion, let
alone the presentation oI unreliable or invalid conclusions to scientiIic or
policy-making audiences. How can we be sure that an earthy`, undeniable`,
serendipitous` Iinding is not, in Iact, wrong? (1979: 591)
We shall consider three relatively widely used modes oI analysis in this section:
classical content analysis, discourse analysis and the grounded-theory method. All
rely on coding, which as Gibbs states:
. involves identiIying and recording one or more passages oI text or other
data items such as the parts oI pictures that, in some sense, exempliIy the same
theoretical or descriptive idea. Usually several passages are identiIied and they
are then linked with a name Ior that idea the code. (2007: 38)
But, each method seeks to develop codes and to use codes in slightly diIIerent ways.
These will be discussed below.
A. Classical content analysis
Classical content analysis is used to examine text or images, either documents that
have been developed Ior other purposes (newspaper articles, case reports etc.) or
research-generated texts such as interview transcripts. It sits at the cusp oI the
quantitative and qualitative divide in that it oIten involves thematic categorization or
coding as well as counting the Irequency with which those themes or codes appear.
Content analysis has wide application. It can be used to examine the nature and
Irequency oI particular types oI legal phenomena within press reports or legal cases,
13
or to consider the content oI interviews or policy documents. It reduces text to codes
by categorizing items in the text and then counting occurrences oI those items to
allow inIerences to be drawn Irom the document. It Iacilitates analysis oI longitudinal
change over time Ior example how use oI the term terrorist` has changed over time
in case law. Content analysis can be descriptive, delineating the codes and the
relationships between them, but it may also be used to explain or to develop a theory
or theories. Researchers using classical content analysis rather than more qualitative
Iorms oI content analysis may be careIul to ensure that they have drawn a random or
representative sample oI documents or research participants to interview, in this
respect drawing on the quantitative sampling tradition rather than on qualitative
methods. They will also be concerned with validity and reliability in the sense that
those terms are used by quantitative researchers because their codes (units oI
measurement) and the inIerences that they draw Irom them are broadly quantitative in
nature. Researchers will keep a code-book that provides an exact, detailed description
oI each code in order to enable others to review their analysis and to reach judgments
about the validity and reliability oI the data analysis and Iindings.
However, some content analysts are more inclined towards a qualitative
interpretation and may use purposive sampling, less quantiIication and more
interpretation in their development oI codes and their treatment oI those codes. Code
selection and development are a matter oI researcher interpretation and researcher
judgment. The researcher will develop an index oI descriptors with labels that
summarize the essence oI the description (a code) to allow the data to be categorized.
These indices are known as coding Irames and may have more in common with Iorms
oI grounded theory than quasi-quantitative classical content analysis. Researchers
read the text to pull out emerging themes, attempting to make them as speciIic as
possible by analyzing how they are used, the limits oI their use, the context within
which they appear and so on. Once these themes solidiIy, they become codes` which
may then be counted and considered in relationship with other codes.
Some researchers may code using pen and paper, while others may use
computer soItware such as NVivo and Atlas to assist them in their work. Computer-
assisted analysis may help to systematize coding, but it is still reliant on the
researcher`s selection oI codes and her interpretation oI the relationships between
them. As such, content analysis can be a relatively highly systematized mode oI
qualitative data analysis, with relatively well-developed rules oI sampling, selection
oI codes, analysis oI those codes and reporting oI Iindings. However, it remains
interpretive, and the researcher must be able to justiIy the sampling method, and the
validity oI her coding Irame, to a greater degree than in many other Iorms oI
qualitative analysis. In addition, as Bauer argues, the subject oI content analysis is
content present in the material being analyzed rather than what the material does not
contain. The researcher can make Iew claims about material that is not Iound in the
text, by comparison with material that is present, unless she has a prior hypothesis that
she tests with reIerence to the presence or absence oI particular content in the
documents. Content analysis is reliant on a relatively large data set, which allows the
researcher to interrogate the content oI a range oI documents to draw conclusions
relating to a theme or themes, or a group or groups (such as solicitors, or judges, or
the police). It thus Iocuses on collectives rather than individuals. Also, the context oI
communications may be (partly) lost when examining the text or the image in
question.
14
B. Discourse analysis
Discourse analysis is a genre rather than a single mode oI data analysis there are a
number oI approaches underneath the umbrella term. Discourse analysis Iocuses on
texts and examines the use oI language, syntax, grammar, pauses, hesitations,
repetitions, and so on, in the discourse being studied. It is an extremely detailed
method that analyzes the text word by word, pause by pause, coupling description
with evaluation. In the case oI interviews, discourse analysis relies on extraordinarily
detailed transcripts. Gill considers that there are Iour main themes in discourse
analysis (2000: 174): a concern with the discourse itself, a view of language as
constructive and constructed, an emphasis upon discourse as a form of action, and a
conviction in the rhetorical organi:ation of discourse. All Iorms oI text may be
analyzed, and it is the structure oI the discourse, rather than the meaning behind the
text that is the key object oI study. The organization oI the text and its content are the
subject oI the enquiry. This Iorm oI analysis does not attempt to uncover objective
Iacts. Indeed discourse analysts view discourse as socially constructed and as a way in
which the speaker or writer can establish a particular version oI the world. This may
seem relatively straightIorward, but the explanation oI how discourse analysts go
about their work is Iar more amorphous:
Somewhere between transcription` and writing up`, the essence oI doing
discourse analysis seems to slip away: ever elusive, it is never quite captured
by descriptions oI coding schemes, hypotheses and analytical schemata.
However, just because the skills oI discourse analysis do not lend themselves
to procedural description, there is no need Ior them to be deliberately
mystiIied and placed beyond the reach oI all but the cognoscenti. Discourse
analysis is similar to many other tasks: journalists, Ior example, are not given
Iormal training in identiIying what makes an event news, and yet aIter a short
time in the proIession their sense oI news values` is hard to shake. There
really is no substitute Ior learning by doing. (Gill, 2000: 177).
As with other Iorms oI qualitative data analysis, data must be coded or categorized so
as to reveal meanings contained within the data. The researcher will seek to develop
labels that capture diIIerent phenomena present in the transcript. In discourse analysis
the researcher will seek to uncover phenomena as understood by the research subject,
rather than phenomena that they can read into the transcript Irom their own
experience. Gill suggests that coding should be as open and inclusive as possible in
the early stages, but over time, as diIIerences emerge, the researcher will Iind patterns
that require the codes to be reIined, rethought or rejected. Unlike classical content
analysts, discourse analysts will consider what is not present as well as what is
present. But, how does a researcher know that she has developed sound codes,
particularly when she believes that all discourse, including her own, is constructed?
Potter (1996) argues that codes should be subjected to deviant case analysis, meaning
that data that appears to contradict codes should be subject to special scrutiny so as to
assist with reIining codes to a greater level oI speciIicity. In addition, although not
unique to discourse analysis, it may be useIul to check how the research participants
view the analysis; the extent to which later studies have agreed with or have deviated
Irom the Iindings; and the extent to which readers have evaluated the study. Many
discourse analysts will include the text that they have analyzed as part oI the
publication process, so that others too may subject it to analysis. Researchers must
constantly review their codes to examine whether the codes accurately describe
15
phenomena as viewed through the eyes oI the speaker or writer rather than as viewed
Irom the researcher`s standpoint.
C. Grounded theory method
In keeping with much qualitative research, grounded theory involves developing
theory as the research proceeds rather than testing a hypothesis posited in advance.
Grounded theory has an appeal to many qualitative researchers because it Iollows the
natural pattern oI human enquiry. It allows the researcher to seek an understanding oI
an area, by developing and reIining a theory as more is learnt about the area. It is
pragmatic and yet theoretical (Glaser and Strauss, 1967). In other words, grounded
theory provides a Iramework Ior the whole research process and not simply a means
oI extracting data. It is a theory oI research, a data collection method, a mode oI
analysis and a way oI generating theory.
It would, perhaps be useIul, to explain the actual research process by way oI
illustration. A well established theory is Iormed aIter three stages oI analysis,
although the stages are not necessarily consecutive, and the researcher could be
undertaking diIIerent stages simultaneously as she adds more texts or documents to
the sample she is analyzing. Stage one is to analyze documents, interview transcripts
or observation notes to discover conceptual categories Irom the data basic codes.
This is done by reading a document line by line, and memoing` (a systematic Iorm oI
note-taking) phenomena that are important in each sentence or paragraph, to come up
with concepts. The researcher should note anything that strikes her as she is reading
each line oI text. This goes beyond describing what she has read and includes any
reactions that she has to the text, or any associations that spring to mind. This stage is
known as open coding` because oI its breadth. Over time, the researcher should
reIine her concepts: those concepts that continue to hold solid as she reads through the
documents should be kept, and things that are not sustained in later documents should
be rejected. The researcher constantly compares what she has Iound, line by line,
document by document to ensure that her observations are producing replicable
concepts rather than one-oII observations.
In the second coding phase the relationships between the ever more speciIic
concepts are examined to produce theoretical categories with reIerence to the memos
developed in stage one. This is known as the axial coding stage. II one Iollows
Strauss` and Corbin`s view, the researcher needs to undertake this phase in the light oI
a particular theory. On the other hand, Glaser criticizes this standpoint and considers
that true grounded theory requires the researcher to take his or her lead Irom the data
rather than trying to impose a particular theoretical approach on the process (Glaser,
1992). The third and Iinal stage oI data analysis is to use the stage two theoretical
categories to develop a core concept, theory or conclusion. Each stage oI data analysis
leads to a higher level oI abstraction Irom the original data. Because oI the cyclical
design, data could be collected Ior the second data cycle at the same time as the data
Irom the previous cycle are being analyzed. These constant comparisons continue
until the researcher considers that no Iurther reIinements can be made by examining
more data until nothing new is added, nothing more is rejected, and the theory or
conclusion has crystallized. Grounded theory analysis is reliant on both what the
researcher observes as she reads through the documents and her reactions to what she
has observed.
16
Many criticisms have been levelled at the grounded theory approach.
Commentators such as Denzin note that grounded theory only goes part way to
meeting the needs oI some interpretivist researchers because grounded theory is a
product oI an empirical research genre which seeks to systematize the research
process to allow Ior replication oI Iindings as required by positivist research theory
(Denzin and Lincoln, 2000: 50935). However, this assumes that the researcher
considers that the core concept she has abstracted into theory is an objective truth that
has been discovered in much the same way as which scientiIic principles may be
established. On the contrary, the grounded theory methodology can be understood as
oIIering a method oI undertaking research as well as a systematic approach to
qualitative analysis, a strategy Ior research rather than as method to generate more
positivist Iindings. Like most modes oI qualitative analysis, it is broadly inductive and
thus seeks to draw out concepts Irom the data, to organize them and to theorize them,
but to do so in a structured and considered Iashion.
VI. Qualitative Research in Practice: A Case Study oI
Lawyer-Client Interactions in a Divorce Context
In order to illustrate some oI the issues raised in the general discussion above, this
section considers a qualitative empirical legal study conducted by Eekelaar, Maclean
and Beinart (Eekelaar et al., 2000). The study examined the work oI solicitors in
divorce cases in England and Wales (other such studies include Davis, Cretney and
Collins` study (1994) in relation to England and Wales, and Sarat and Felstiner`s
study (1995) in relation to the USA). Eekelaar et al.`s study is inIormative, because it
used a mixed method in two distinct phases (principally observation and interviews,
with some documentary research), and content analysis to analyze the interview
transcripts.
The background to the study was a set oI assumptions about solicitor
adversarialism in divorce matters seemingly widely held by the media, policy-makers
and politicians around the passage oI a new Family Law Bill in the UK. In a previous
study Lewis had examined government policy-makers` perceptions oI adversarialism
through a qualitative study oI policy documents (Lewis, 2000: 67) and Iound these
assumptions to be widespread and inIluential in the policy and legislative agenda in
the UK at the time. There was little systematic evidence underpinning these
perceptions, and yet they were prevalent and were regularly reIerred to in political and
media discourse as well. Eekelaar et al.`s study sought to consider whether these
assumptions had any empirical validity, by examining the primary data source the
way in which solicitors interacted with their divorce clients and with other solicitors
through observation oI interactions and through the traces oI their interactions in the
Iorm oI letters and Iile notes on their case Iiles. They also asked solicitors to explain
their interactions and their approach to clients and to other solicitors.
This was a micro study, examining the work oI a sample oI individual
solicitors. The researchers used a three-Iold methodology. In the Iirst instance they
observed ten partner-level solicitors at work Ior a day (14 days` observation in total as
two researchers observed some oI the solicitors), recording what the solicitors did in
descriptive terms. They explained that, The purpose of this exercise was to acquire
evidence of the business context in which the lawyers operated, how they prioritised
and responded to issues as they arose, and the details of their interaction with
clients.` (2000: 31). The second mode oI data collection was to conduct interviews
17
with 40 solicitors who were asked to talk about pre-selected cases Irom the beginning
oI the case to the present position. These solicitors were Irom Iour regions in England
and Wales and were chosen Irom solicitors listing Iamily work as an area oI practice
in the Law Society Regional Directories (2000: 34). Because oI the qualitative nature
oI the study and the size oI the sample, the researchers could not claim that the
Iindings were representative oI all divorce solicitors in England and Wales; but the
research methods deployed provided a depth oI understanding that could not have
been gained by quantitative methods. The range oI solicitors that were interviewed
provided a variety oI experiences that were considered to be representative oI
diIIerent types oI Iamily law solicitors even iI not representative in quantitative terms.
The dual approach to data collection (observation and interviews linked to
case Iiles) provided a more rounded data set and more in-depth Iindings than would
have been possible using a single method alone. The observation allowed the
researchers to watch solicitor-client interaction (behavior), as well as to experience
their working day. The interviews provided evidence oI solicitor perceptions, their
reasoning and their approach to clients and to other solicitors. The researchers asked
the solicitor to pull out the Iile prior to the interview and to talk through the case. The
discussion oI the case Iiles provided insights into solicitor-client and solicitor-solicitor
interactions. AIter the pilot the researchers drew up a list oI prompts, open questions
that acted as a means to begin discussions on particular issues, which they could use
in interviewing solicitors to ensure that key inIormation was not missed and yet
discussions were not unduly choreographed by the interviewer. Once all the data had
been collected, the interview transcripts were analyzed using content analysis, and
illustrative quotes were included in the write-up oI their Iindings as evidence oI what
they had observed and heard. The quotes also allow the reader to see some oI the raw
data, allowing the reader to travel to the solicitors` oIIices to sit with the researchers
and reach conclusions oI their own.
Eekelaar et al.`s Iindings have done much to challenge pervasive perceptions,
among law-makers, some academics and even some Iamily mediators, that divorce
solicitors adopt an adversarial posture. They Iound little evidence oI adversarialism,
only coming across two cases in which there was any evidence oI point scoring` by
one or both oI the solicitors and this appeared to be driven by the clients rather than
originating Irom the solicitors. They Iound a plethora oI examples oI solicitors
providing practical support, guidance, assistance with third parties, assistance over
and above what would be expected oI a solicitor acting as adviser and champion in
the adversarial paradigm. Solicitors tried to encourage their clients to negotiate
between themselves in relation to children and household issues and items; they did
not encourage a complete break in communication that would have allowed them to
handle` the case in all respects (2000: 184). The team Iound that, iI anything,
solicitors tried to take measures to reduce tension between the couple rather than
increase it. Solicitors did not see tension as an eIIective tool to resolve disputes
between the parties in a divorce context. In addition, this research provides some
evidence indicating that solicitors, in England and Wales at least, do not attempt to
maximize the outcome Ior their clients, at the expense oI the other party and other
interested parties, regardless oI applicable legal norms. These Iindings did not support
the policy-makers` and media`s perceptions oI adversarialism, and provide an
alternative, evidence-based picture oI divorce practice in England and Wales.

18
VII. Conclusions
As I hope this Chapter has illustrated, there are a number oI understandings oI
qualitative research, research design and strategy, the methods that may be adopted to
undertake such studies, the data that may be collected and the ways in which they may
be analyzed. Many oI these understandings are held in common by qualitative and
quantitative researchers, even iI sampling and measures oI validity and
reliability/dependability may diIIer between the two traditions. BeIore choosing a
method, standpoint, or mode oI analysis, a researcher needs to consider the purpose oI
her study, the access that she may be given to potential participants and places, the
extent oI her resources, the research time Irame, the intended audience, the use to
which she hopes that the research will be put, her view on research and its meaning,
and her training and expertise. Then she should choose a research strategy, and all that
Ilows Irom it, which is suited to the research question and the study`s aims.
Qualitative research is particularly good Ior examining whether or not a
particular social phenomenon exists and iI so, the nature oI the phenomenon. It is less
use Ior assessing the extent and distribution oI a phenomenon, something that is better
leIt to quantitative research. Qualitative research usually yields extensive data, much
oI it descriptive in its initial stages, Irom which the researcher oIten seeks to derive an
understanding oI key patterns or themes. It is not unusual to discover that one`s
Iindings are actually relatively modest in scope, iI insightIul. Qualitative studies may
not (usually) provide systematic generalizable Iindings, but oIten problems within the
legal system, best practice insights and the eIIect oI policy shiIts can only be
examined using in-depth, qualitative methods. Just as the common lawyer learns to
understand the law by Iocusing on a small number oI important and relevant
precedent-bearing cases, so the qualitative researcher sets out to understand
individuals` experiences oI law, legal meaning, and the justice system and their
relationship with it.

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