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Chapter 38 Qualitative Approaches to Empirical

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 Oxford Handbook of Empirical Legal Research
(eds) Peter Cane and Herbert Kritzer OUP 2010

Chapter 38
QUALITATIVE APPROACHES TO EMPIRICAL
LEGAL RESEARCH
Lisa Webley

I. Introduction and Background

Qualitative research methods are often identified with the social sciences and
humanities more generally than with the discipline of law in particular. That is not to
say that lawyers do not make use of 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 of establishing the
law through analysis of precedent is in fact a form of qualitative research using
documents as source material. But qualitative empirical legal research goes far
beyond this kind of research. This Chapter will not focus on common law legal
analysis of cases but instead provide an insight into different qualitative methods,
many of which have been used in studies examining people’s perception of law and
justice (see, for example, Genn’s Paths to Justice study, 1999); lawyer-client
interactions (see for example Sarat and Felstiner’s study of divorce lawyers and their
clients, 1995); alternative dispute resolution mechanisms and their relationship with
the legal system (see for example Davis et al.’s study of the family mediation legal aid
pilot in England and Wales, 2000, and Dingwall and Greatbatch’s observation of
family mediation sessions, 1991); gender, the legal profession and professional
identity (for example Duff and Webley’s study of women solicitors and career breaks,
2004); and legal aid and access to justice (see for example Moorhead et al.’s study of
legal aid models and quality of legal service delivery, 2000).
It may be helpful to begin with a basic definition of qualitative research. Kirk
and Miller (1986: 9) suggest that qualitative research

…fundamentally depends on watching people in their own territory and

interacting with them in their own language, on their own terms. As identified
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 (often ‘the field’) 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 of ‘traces’ – documents constructed by those other than the
researcher for a non-research purpose, such as a media report or a policy document.
Qualitative approaches are distinct from quantitative ones in that:
‘Technically, a “qualitative observation” identifies the presence or absence of
something, in contrast to “quantitative observation,” which involves measuring the
degree to which some feature is present. …’ (Kirk and Miller, 1986: 9).

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Consequently, qualitative research does not depend on statistical quantification, but
attempts to capture and categorize social phenomena and their meanings. Bauer et al.
(2000: 9) explain that:

One needs to have a notion of qualitative distinctions between social

categories before one can measure how many people belong to one or the
other category. If one wants to know the colour distribution in a field of
flowers, one first needs to establish the set of colours that are in the field; then
one can start counting the flowers of a particular colour. The same is true for
social facts.

It is not possible to measure the frequency of a ‘social fact’ until it has been identified
and defined.
In qualitative research, the data are usually collected through three main
methods, used singly or in combination: direct observation, in-depth interviews and
analysis of documents (for a discussion see May, 2001: 138–73, Punch, 1998: 139–
68; or Patton, 2002: 4–5). The data may take a number of forms. It may include notes
made by the researcher that provide a detailed description of what, where, and how
people did what they did, their interactions, processes etc., or a description of the
researcher’s observations and reactions to text-based sources, sounds, video or
images. Data may also be in the form of a transcript or verbatim quotes of 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 from the research
participants or texts and images directly (in the form of quotes) or via the researcher
in the form of his or her reaction to or understanding of what was said or written.
There are misconceptions about when qualitative and quantitative research,
and different modes of data collection within those approaches, should be used. Some
have argued that qualitative methods should be used for exploratory research
(research that is designed to examine whether an issue, situation or problem exists and
if so to define it) and quantitative research methods for 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 for descriptive studies (research designed to describe an issue,
situation, problem or set of attitudes). These ‘rules’ contain an element of truth, in that
different forms of research design and different data collection methods lend
themselves more readily to different types of research question. But the ‘rules’ are by
no means determinative. It is possible to use qualitative research for exploratory,
explanatory and descriptive research and to draw causal inferences from the data –
assuming of course that the researcher develops an appropriate research design, and
adopts an appropriate data collection method and mode(s) of data analysis in order to
answer the research questions posed. We shall consider each of these later in the
Chapter.
The discussion that follows is sub-divided into six sections. The first section
considers the theoretical context and development of qualitative research. It has not
been possible to look at any of the issues in detail, or to give in-depth answers to all
the theoretical criticisms of qualitative methods. The second section provides a brief
overview of aspects of qualitative research design including sampling, validity and
dependability. The third section examines a range of data collection methods
employed in qualitative empirical legal research, and the fourth section outlines three
key modes of data analysis: classical content analysis, discourse analysis and

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grounded theory method. The fifth section provides a case study to illustrate many of
the themes discussed in the previous sections from research design to research method
and data analysis. The final section offers some conclusions about qualitative research
in the context of empirical legal studies.

II. Qualitative Research – Assumptions and Theoretical

Underpinning
It is difficult to provide a precise or widely accepted definition of qualitative research
and the theory underpinning it because so much of the terrain is contested. Most
researchers who conduct qualitative research would agree that it is socially concerned,
examines phenomena in their social settings (if field work is being undertaken) and
considers those phenomena in context. Some argue that epistemological and
ontological differences are at the heart of the divide between qualitative and
quantitative research, and also at the heart of the definitional difficulties within the
qualitative research literature. Epistemology, one’s understanding of the nature of
knowledge, and ontology, one’s understanding of the nature of being or reality (is
there one reality or several, or does each person construct their own reality?) affect
the way in which one conducts research, interprets data and reports findings. The two
methodological traditions rest on different epistemologies – quantitative methods are
often associated with deductive reasoning while qualitative methods often rely heavily
on inductive reasoning. Deductive reasoning is based on a general hypotheses posed
before data collection begins whereas inductive reasoning seeks to derive general
themes or patterns from the data collected as the research progresses. But even those
generalizations are not without their problems.
The focus of quantitative researchers on rigorous data-collection and modes of
data-analysis is progressively being picked up by qualitative researchers intent on
increasing the acceptability of qualitative research findings. 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 often
viewed as being very different. Many purely quantitative researchers argue that
quantitative research enquires into observable, measurable, independent facts whereas
many purely qualitative researchers argue that they enquire into socially constructed
facts 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 of a distinction
between positivist and intepretivist (or ‘constructivist’) epistemological approaches.
However, there are other ways to categorize and delineate different forms of
qualitative research. Patton (2002: ch 3) provides an extremely crisp and useful
summary of these and May (2001: ch 1) outlines the main points of departure for the
various modes of qualitative enquiry. Positivism considers people as the products of
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 far better. Interpretivism also considers people as the products of
their environment but additionally as those who construct the environment through
their understandings of it. Researchers from the intepretivist tradition are more
inclined to focus on an individual’s inner world, their understanding of 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 of 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 from a positivist standpoint.
King, Keohane and Verba (1994: 3), for example, appear to be more closely
associated with the positivist conception of qualitative research than the interpretivist.
One of the difficulties of linking positivism to quantitative research and interpretivism
to qualitative research is that it may suggest that quantitative data speak for
themselves because they are objective and that qualitative data require interpretation
and lack of objectivity and thus validity. Quantitative data (statistical data) require
human interpretation to give them meaning (see Kritzer, 1996); qualitative data
sometimes need to be quantified to provide some understanding of how frequently
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, first, that assumptions should not be made in advance of 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 before the research is undertaken but after previous research findings have
been considered. He claims that the research process should be objective in the sense
of being value-neutral and capable of revealing the truth about a given proposition.
This is in keeping with the hypothesis-testing quantitative tradition in social science
research, which is redolent of natural science. Some qualitative researchers adhere to
these tenets and thus consider that if done well, both qualitative and quantitative
forms of research can be systematic and produce valid, dependable findings. King,
Keohane and Verba argue that qualitative research is just as capable as quantitative
research of producing valid descriptive and causal inferences (1994: 3), both being
underpinned by the same logic of inference even though the two styles and techniques
of research may be different.
However, researchers allied to interpretivism argue that positivist approaches
to research may fall short when it comes to understanding and revealing the layers of
social meaning and context that underpin social behavior and practices, which in turn
produce and reproduce structural relations over time. The method of 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 follow. Many
qualitative methods draw upon this understanding of social research. But if people
construct their own meaning, where does that leave the researcher who seeks to
understand others’ meanings? Lofland (1971) argues that the role of 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 feel. This requires empathy rather than
distance, even if that empathy should be derived from a place of neutrality (Patton
(2002) coined the phrase empathic neutrality: 50). Some argue that stripping away the
context in an attempt to achieve objectivity may in fact undermine the research, the
analysis and the findings (see for example Bourdieu, 1992 and Goffman, 1981: 122).
What does that mean in practice? It means that in order to really learn from others,

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one may need to interact with them rather than to remain entirely distanced. The
researcher collects data by way of 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 reflect her own frame of reference, because no-one is
capable of being objective, all meaning being socially constructed. She would argue
that to deny this is to deny the opportunity for the researcher to uncover and to
critique her own understanding, which is an important part of 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 defined method of qualitative research has become increasingly
popular and appears to appeal to researchers from different 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 from data sources using a constant
comparative method. It requires the researcher to revisit her descriptions of
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 from the data sources appears to have more in
common with interpretivism, at least in the practice of some researchers (as discussed
below). Grounded theory thus appears to skirt around many of the theoretical debates
on epistemology, although they are hidden under the surface.

III. Research Design

Research design is a fundamentally important factor in any research project, including
qualitative studies. However, research design may need to be more flexible and
adaptive to changing circumstances and understandings when research is conducted in
situ – for example, when observing a mediation meeting or a client meeting taking
place in a solicitor’s office. In design terms, qualitative research unfolds – 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 findings. This means that the
research design may be relatively fluid; the parameters of the study and the approach
and methods adopted may have to be amended to accommodate altered
understandings and changing dynamics. Different researchers embrace such change
more or less willingly. Some will consider a fluid method to be a positive benefit,
indicating the responsiveness of the research and the researcher, while others may
experience rising panic that they are losing their grip on the study.
There are five basic aspects of designing a qualitative empirical research study
once the researcher has framed 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 of such methods is likely to answer the question most effectively. 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 of 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 of a computer? Fourth,
ethical considerations must be at the forefront of the researcher’s mind, as the first
rule is to try to do no harm to participants and if 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 of the research design. In order to
answer the research question as fully and reliably as possible, it is important that all
five aspects dovetail and are in tune with each other.
There are a number of research strategies, including experiments (in empirical
legal research these will often take the form of simulated situations), historical
analyses, interviews and surveys used to determine views and perceptions, case
studies, documentary analysis (which could include historical analysis) and analysis
of researcher-generated or extant statistics such as cost/benefit analyses. At one time
it was thought that particular types of data were more appropriate for different types
of research question: qualitative data was thought more useful the more exploratory
the research, while quantitative data was thought more useful the more descriptive or
explanatory the research. Particular research methods became allied with particular
types of 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 of the relative merits of the different research strategies and
research methods. He argues that more important than the type of research being
undertaken is the fit between the strategy (case study, archival analysis, survey etc.)
the form of the research question (why, who, what, where, when, how etc.?), whether
the research focuses 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 of control poses few if any problems (1994: 6).
Genn indicates that some researchers may consider a ‘quant sandwich’ more
appropriate, combining qualitative exploratory work, followed by a quantitative
survey, which is then followed up with in-depth interviews (2009: 231). Kritzer
considers that it may be useful to undertake qualitative research after quantitative
research, so that the nuances of 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 findings in which
one may have confidence. In other words, has the researcher interviewed a sufficient
number of people or observed sufficient instances in order to capture a spectrum of
viewpoints and experiences and to be able to report findings that report the nuances of
experience rather than a narrow perspective? As a rule of thumb, quantitative methods
rely heavily on the collection of large quantities of data from an entire population, or a
random or representative sample, in a systematic fashion. Such data are analyzed
statistically so that conclusions may be drawn to prove or disprove one or more
defined hypotheses. If the data do not cover an entire population, it is important that
they are from a sufficiently large and representative or random sample of that
population, if the researcher wishes to argue that conclusions can be drawn from 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 of the
population of interest, asking respondents carefully 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 of interest. Quantitative studies
that have been well designed and well executed should produce findings that are
generalizable to the population if an appropriate sample has been drawn from that
population. (see Black, 1999: 27–139).
In contrast, qualitative research tends to focus on a smaller number of
‘observations’ or ‘data sources’, whether people or events or documents, which are
considered to be data rich and thus worthy of study, and to examine them in-depth.
There are various sampling techniques that may be employed. Some qualitative
researchers may adopt versions of representative or random sampling used by
quantitative researchers. Others may adopt an intentionally stratified sampling method
in which they ensure that the research sample includes (for instance) people or
documents in key categories. For example if the research concerns the views of legal
professionals, the sample may include a certain number of judges, a certain number of
advocates and a certain number of transactional lawyers in order to capture a full
range of views among legal professionals. The researcher may opt for a snowball
sampling technique, meaning that she will begin with a group of research participants
known to her (or otherwise identified in advance in some way), and then ask each to
provide details of someone else whom they consider to be a good research subject for
the purposes of the study, and in that way gradually build up a larger sample of
participants. Alternatively the researcher may seek out key people or events that are
likely to provide rich sources of information or data. Patton describes this as
‘purposeful 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
findings that are generalizable to an entire population. Instead, focused, in-depth
studies are designed to go beyond description to find meaning, even if that meaning is
related to an individual’s experiences of the justice system (for instance), or the
perceptions of a small number of people on access to justice (for instance). In-depth
research affords 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 findings that capture a broad range of experiences rather than those from
only a few people or situations. The findings will be representative in the sense of
capturing the range or variation in a phenomenon, but not in the sense of allowing for
the estimation of the distribution of the phenomenon in the population as a whole. The
extent to which the researcher truly gets to grips with, say, clients’ experiences of the
quality of 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, if the study has
been well designed and well executed then the findings should be valid and
dependable, but that does not mean that they will be generalizable. The findings
should provide insight into a phenomenon and the extent to which it is present or
absent; but unlike quantitative research, qualitative findings rarely provide a measure
of frequency of occurrence.

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B. Validity, reliability and dependability of qualitative research

As discussed above, quantitative research methods have been closely linked to the
natural sciences, and judgments about the quality of research have tended to adopt this
perspective. Validity and reliability are both terms used extensively in respect of
studies that make use of quantitative data. Validity is a measure of the extent to which
the researcher has captured an accurate reflection of a phenomenon. Reliability refers
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 different time or by
someone else. (Kirk and Miller, 1986: 41–2). Taken together, reliability and validity
determine the extent to which the research, if done by someone else or in slightly
different conditions, would lead to similar data (reliability) and whether the findings
that flow from that data would provide an accurate reflection of the phenomenon
being researched (validity). The terminology of validity and reliability are derived
from positivist rather than interpretivist conceptions of data and data analysis.
Interpretivist researchers argue that there are some difficulties with applying positivist
interpretations of reliability to qualitative research, which is less concerned with
quantity and distribution and more with people’s understandings of the meaning of
social facts.
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 from 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 of the pilot, to be reflexive and to report on the strengths and
weaknesses of her research, to be specific rather than too sweeping in her findings,
and to provide evidence in support of points to allow others to check the extent to
which she has drawn acceptable conclusions from the evidence. Rather than using the
concepts ‘validity’ and ‘reliability’, some researchers prefer to assess the
dependability and integrity (some would say trustworthiness or the extent to which the
research and its findings are free from bias) of qualitative studies in terms of the
questions posed, the methods used, data generated, triangulation (the combination of
methods and data types), modes of analysis and whether the evidence supports the
findings. Some argue that qualitative research has much to learn from quantitative
conceptions, and others such as Kritzer (1996) argue that quantitative research has
much to learn from qualitative research. However, both traditions’ tests for quality
encompass an assessment of the research design, the data collection method and the
data analysis in order to judge validity and dependability/reliability of the findings
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 of individuals’
experiences and behavior, or of structures and organizations, or of other social
phenomena. Various research methods will support different types of findings,
because different methods provide different 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 of data-collection

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methods is largely dependent on the research question, leading to the research strategy
(design) that best fits the research objectives, the availability of access to particular
data sources and the resources available to conduct the study. Ethical issues also play
an important role in choice of research subject and research method. The following
sub-sections will focus 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
of) experiences and perceptions. Interviews may be conducted face-to-face or
remotely (via telephone or video link). Individual interviews are used extensively by
qualitative researchers examining legal phenomena, and perceptions of law and the
legal profession (see for example: Sommerlad, 2007; Thornton). Focus groups (group
interviews) are one of a range of qualitative data collection methods that may lead to
both useful data and truly participatory interviewer-interviewee interaction. ‘Groups
are not just 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 frequently in
empirical legal research than are individual interviews, probably in part because of the
negative connotations associated with their use in the party political arena, and in part
because they are logistically more difficult to organize and require a skilled facilitator
(for an example see Duff and Webley,, 2004).
Some general rules apply to qualitative interviews. For instance, they should
be either very loosely structured (the researcher may make use of prompts to steer the
discussion through a series of issues deemed important by the researcher) or only
semi-structured (the researcher will have some set questions to ask but the majority of
questions will be open-ended rather than closed). If the respondent consents,
interviews are generally taped where possible to allow the researcher to analyze the
full transcript. Interviews are extremely effective 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 of problems of memory and selective recall. Having the interview observed
by a third party may assist the researcher, if the study is to examine behavior or
interactions between research participants (Dingwall and Greatbatch, 1991).

B. Third party and participant observation

Observation research is fraught with methodological and ethical difficulties – if
people know that they are being observed then they may consciously or
subconsciously alter their behavior (known as the Hawthorne effect). But covert
research poses significant ethical problems. Some researchers, principally
ethnographers, may immerse themselves in a situation for an extended period of
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 form of research has the benefit that research participants over time become less
affected by researcher presence and revert to more usual patterns of behavior.
However, it is also argued by others that research derived through participant
observation may be tainted by the lack of critical reflection. Many ethnographers

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would argue that ‘going native’ is a positive rather than a negative of this type of
research, as it yields far better data, as long as the researcher remains reflexive (she
examines critically her assumptions and motives). Becker and Geer state:

The most complete form of the sociological datum, after all, is the form in
which the participant observer gathers it: an observation of some social event,
the events which precede and follow it, and explanations of its meaning by
participants and spectators, before, during and after its occurrence. Such a
datum gives us more information 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 prefer to observe from a more independent standpoint, as an outsider
rather than as a participant. This form of observation is more likely to be episodic
rather than continuous, in that the researcher observes a specific event or events for a
relatively short period. Advocates of this research method consider that it combines
some distance with a wealth of opportunities to collect contextualized, rich,
description of the setting and quotes from those being observed. Eekelaar et al.’s
study of divorce solicitors employed this form of observation along with other data
collection methods (discussed in detail below). Observation notes seek to capture the
detail of the scenes observed, along with researcher perceptions of those scenes. They
should be sufficiently detailed to form the basis of reports that take the reader into the
scene observed, and allow him or her to share the experience and learn from it as
much as is possible through the written word. But access can be difficult, and the skill
of writing field 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 of data, ranging from the official 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 of data (for an
example see Webley, 2008). May notes that,

Documents, as the sedimentations of social practices, have the potential to

inform and structure the decisions which people make on a daily and longer-
term basis; they also constitute particular readings of social events. They tell
us about the aspirations and intentions of the period to which they refer and
describe places and social relationships at a time when we may not have been
born, or were simply not present. (2001: 157–8)

The apparent reluctance of empirical legal researchers to use non-legal documents as

sources of data may in part be explained by the many differing conceptions of what
constitutes appropriate method and about the reliance that can be placed on
documents as sources of data. It may also indicate that researchers have not found
documents that they consider useful data sources for the research.

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There are many approaches to document analysis, and there is insufficient
space to discuss them here. The mode of analysis (the way in which data are extracted
from the documents) will in part depend on the nature of the documents, for example
whether they are formal communications (case reports, legislation, newspaper articles
or policy documents) or informal communications (solicitor file 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 of the
document but not its context. Some researchers have developed a checklist of
questions that they believe the researcher should ask before documents or images are
selected, reviewed and analyzed (see for example Finnegan’s list of eight questions,
1996: 146–9).
Documentary analysis has been criticized on a number of grounds. Some
argue that documents are not susceptible to scientific, systematic analysis in keeping
with positivist traditions. To what extent can one draw conclusions from these
documents? For some, documents reflect or report reality, describing an event, a
perception, or an understanding (May, 2001: 158). An alternative view is that
documents represent the practical requirements for which they were created or, in
other words the purpose of the document. A third conception is that documents do not
report social reality as such but are a source of meanings, ‘…we now utilize 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 of the words as used in the document rather than to use the
researcher’s own understanding of 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 of
policy directions, legislative intent, understandings of perceived shortcomings or best
practice in the legal system, and agenda for change (see Bloch, 1992 for a discussion).

D. Case studies
The case study may be either an umbrella strategy that combines a range of data (for
example survey data, interviews, documentary or historical analysis) or a distinct
method of 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 of one situation, event or location. They are useful 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 of the hypothesis is not itself the
subject of the enquiry). But, case studies are far from 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 of
different data sources collected using a range of research methods assists in reducing
the possibility that the research will lead to misleading findings based on an
incomplete picture. The process of using multiple data sources to reach well rounded
conclusions is known as triangulation. This adds weight to any findings. Researchers
may choose to examine more than one event, situation, case or organization using a

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case-study format, although because the research must focus in depth on each one, it
may be prohibitively time consuming to undertake case studies for a large number of
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 focus in
detail on a given situation rather than to provide findings that are generalizable to
other situations. However, it may be possible to reach a general conclusion by testing
the findings of one case study by undertaking another, or if the specific case
represents what Yin has referred to as a ‘critical case’.
The next section will consider three of the main methods used to analyze the
data, whether the researcher’s own field 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 of conclusions and findings from the data are among
the more contentious aspects of qualitative research. How can one derive valid and
dependable findings from reams of observation notes, interview transcripts or
documents? As Miles explains,

The most serious and central difficulty in the use of qualitative data is that
methods of analysis are not well formulated. For quantitative data, there are
clear conventions the researcher can use. But the analyst faced with a bank of
qualitative data has very few guidelines for protection against self-delusion, let
alone the presentation of unreliable or invalid conclusions to scientific or
policy-making audiences. How can we be sure that an ‘earthy’, ‘undeniable’,
‘serendipitous’ finding is not, in fact, wrong? (1979: 591)

We shall consider three relatively widely used modes of analysis in this section:
classical content analysis, discourse analysis and the grounded-theory method. All
rely on coding, which as Gibbs states:

… involves identifying and recording one or more passages of text or other

data items such as the parts of pictures that, in some sense, exemplify the same
theoretical or descriptive idea. Usually several passages are identified and they
are then linked with a name for that idea – the code. (2007: 38)

But, each method seeks to develop codes and to use codes in slightly different 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 for other purposes (newspaper articles, case reports etc.) or
research-generated texts such as interview transcripts. It sits at the cusp of the
quantitative and qualitative divide in that it often involves thematic categorization or
coding as well as counting the frequency with which those themes or codes appear.
Content analysis has wide application. It can be used to examine the nature and
frequency of particular types of legal phenomena within press reports or legal cases,

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or to consider the content of interviews or policy documents. It reduces text to codes
by categorizing items in the text and then counting occurrences of those items to
allow inferences to be drawn from the document. It facilitates analysis of longitudinal
change over time – for example how use of 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
forms of content analysis may be careful to ensure that they have drawn a random or
representative sample of 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 of
measurement) and the inferences that they draw from them are broadly quantitative in
nature. Researchers will keep a code-book that provides an exact, detailed description
of each code in order to enable others to review their analysis and to reach judgments
about the validity and reliability of the data analysis and findings.
However, some content analysts are more inclined towards a qualitative
interpretation and may use purposive sampling, less quantification and more
interpretation in their development of codes and their treatment of those codes. Code
selection and development are a matter of researcher interpretation and researcher
judgment. The researcher will develop an index of descriptors with labels that
summarize the essence of the description (a code) to allow the data to be categorized.
These indices are known as coding frames and may have more in common with forms
of grounded theory than quasi-quantitative classical content analysis. Researchers
read the text to pull out emerging themes, attempting to make them as specific as
possible by analyzing how they are used, the limits of their use, the context within
which they appear and so on. Once these themes solidify, 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 software 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 of codes and her interpretation of the relationships between
them. As such, content analysis can be a relatively highly systematized mode of
qualitative data analysis, with relatively well-developed rules of sampling, selection
of codes, analysis of those codes and reporting of findings. However, it remains
interpretive, and the researcher must be able to justify the sampling method, and the
validity of her coding frame, to a greater degree than in many other forms of
qualitative analysis. In addition, as Bauer argues, the subject of content analysis is
content present in the material being analyzed rather than what the material does not
contain. The researcher can make few claims about material that is not found in the
text, by comparison with material that is present, unless she has a prior hypothesis that
she tests with reference to the presence or absence of particular content in the
documents. Content analysis is reliant on a relatively large data set, which allows the
researcher to interrogate the content of a range of 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 focuses on collectives rather than individuals. Also, the context of
communications may be (partly) lost when examining the text or the image in
question.

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B. Discourse analysis
Discourse analysis is a genre rather than a single mode of data analysis – there are a
number of approaches underneath the umbrella term. Discourse analysis focuses on
texts and examines the use of 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 of interviews, discourse analysis relies on extraordinarily
detailed transcripts. Gill considers that there are four 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 organization of discourse.’ All forms of text may be
analyzed, and it is the structure of the discourse, rather than the meaning behind the
text that is the key object of study. The organization of the text and its content are the
subject of the enquiry. This form of analysis does not attempt to uncover objective
facts. Indeed discourse analysts view discourse as socially constructed and as a way in
which the speaker or writer can establish a particular version of the world. This may
seem relatively straightforward, but the explanation of how discourse analysts go
about their work is far more amorphous:

Somewhere between ‘transcription’ and ‘writing up’, the essence of doing

discourse analysis seems to slip away: ever elusive, it is never quite captured
by descriptions of coding schemes, hypotheses and analytical schemata.
However, just because the skills of discourse analysis do not lend themselves
to procedural description, there is no need for them to be deliberately
mystified and placed beyond the reach of all but the cognoscenti. Discourse
analysis is similar to many other tasks: journalists, for example, are not given
formal training in identifying what makes an event news, and yet after a short
time in the profession their sense of ‘news values’ is hard to shake. There
really is no substitute for learning by doing. (Gill, 2000: 177).

As with other forms of 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 different 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 from their own
experience. Gill suggests that coding should be as open and inclusive as possible in
the early stages, but over time, as differences emerge, the researcher will find patterns
that require the codes to be refined, 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 refining codes to a greater level of specificity. In addition, although not
unique to discourse analysis, it may be useful to check how the research participants
view the analysis; the extent to which later studies have agreed with or have deviated
from the findings; and the extent to which readers have evaluated the study. Many
discourse analysts will include the text that they have analyzed as part of 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

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phenomena as viewed through the eyes of the speaker or writer rather than as viewed
from 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 follows the
natural pattern of human enquiry. It allows the researcher to seek an understanding of
an area, by developing and refining 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 framework for the whole research process and not simply a means
of extracting data. It is a theory of research, a data collection method, a mode of
analysis and a way of generating theory.
It would, perhaps be useful, to explain the actual research process by way of
illustration. A well established theory is formed after three stages of analysis,
although the stages are not necessarily consecutive, and the researcher could be
undertaking different 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 from the data – basic codes.
This is done by reading a document line by line, and ‘memoing’ (a systematic form of
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 of 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 of its breadth. Over time, the researcher should
refine 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 found, line by line,
document by document to ensure that her observations are producing replicable
concepts rather than one-off observations.
In the second coding phase the relationships between the ever more specific
concepts are examined to produce theoretical categories with reference to the memos
developed in stage one. This is known as the axial coding stage. If one follows
Strauss’ and Corbin’s view, the researcher needs to undertake this phase in the light of
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 from the data
rather than trying to impose a particular theoretical approach on the process (Glaser,
1992). The third and final stage of data analysis is to use the stage two theoretical
categories to develop a core concept, theory or conclusion. Each stage of data analysis
leads to a higher level of abstraction from the original data. Because of the cyclical
design, data could be collected for the second data cycle at the same time as the data
from the previous cycle are being analyzed. These constant comparisons continue
until the researcher considers that no further refinements 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.

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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 of some interpretivist researchers because grounded theory is a
product of an empirical research genre which seeks to systematize the research
process to allow for replication of findings as required by positivist research theory
(Denzin and Lincoln, 2000: 509–35). 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 scientific principles may be
established. On the contrary, the grounded theory methodology can be understood as
offering a method of undertaking research as well as a systematic approach to
qualitative analysis, a strategy for research rather than as method to generate more
positivist findings. Like most modes of qualitative analysis, it is broadly inductive and
thus seeks to draw out concepts from the data, to organize them and to theorize them,
but to do so in a structured and considered fashion.

VI. Qualitative Research in Practice: A Case Study of

Lawyer-Client Interactions in a Divorce Context
In order to illustrate some of 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 of 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 informative, 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 of assumptions about solicitor
adversarialism in divorce matters seemingly widely held by the media, policy-makers
and politicians around the passage of a new Family Law Bill in the UK. In a previous
study Lewis had examined government policy-makers’ perceptions of adversarialism
through a qualitative study of policy documents (Lewis, 2000: 6–7) and found these
assumptions to be widespread and influential 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 referred 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 of interactions and through the traces of their interactions in the
form of letters and file notes on their case files. 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 of a sample of individual
solicitors. The researchers used a three-fold methodology. In the first instance they
observed ten partner-level solicitors at work for a day (14 days’ observation in total as
two researchers observed some of 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 of data collection was to conduct interviews

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with 40 solicitors who were asked to talk about pre-selected cases from the beginning
of the case to the present position. These solicitors were from four regions in England
and Wales and were chosen from solicitors listing family work as an area of practice
in the Law Society Regional Directories (2000: 34). Because of the qualitative nature
of the study and the size of the sample, the researchers could not claim that the
findings were representative of all divorce solicitors in England and Wales; but the
research methods deployed provided a depth of understanding that could not have
been gained by quantitative methods. The range of solicitors that were interviewed
provided a variety of experiences that were considered to be representative of
different types of family law solicitors even if not representative in quantitative terms.
The dual approach to data collection (observation and interviews linked to
case files) provided a more rounded data set and more in-depth findings 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 of solicitor perceptions, their
reasoning and their approach to clients and to other solicitors. The researchers asked
the solicitor to pull out the file prior to the interview and to talk through the case. The
discussion of the case files provided insights into solicitor-client and solicitor-solicitor
interactions. After the pilot the researchers drew up a list of 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 information 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 of their findings as evidence of what
they had observed and heard. The quotes also allow the reader to see some of the raw
data, allowing the reader to travel to the solicitors’ offices to sit with the researchers
and reach conclusions of their own.
Eekelaar et al.’s findings have done much to challenge pervasive perceptions,
among law-makers, some academics and even some family mediators, that divorce
solicitors adopt an adversarial posture. They found little evidence of adversarialism,
only coming across two cases in which there was any evidence of ‘point scoring’ by
one or both of the solicitors – and this appeared to be driven by the clients rather than
originating from the solicitors. They found a plethora of examples of solicitors
providing practical support, guidance, assistance with third parties, assistance over
and above what would be expected of 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 found that, if anything,
solicitors tried to take measures to reduce tension between the couple rather than
increase it. Solicitors did not see tension as an effective 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 for their clients, at the expense of the other party and other
interested parties, regardless of applicable legal norms. These findings did not support
the policy-makers’ and media’s perceptions of adversarialism, and provide an
alternative, evidence-based picture of divorce practice in England and Wales.

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VII. Conclusions
As I hope this Chapter has illustrated, there are a number of understandings of
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 of these understandings are held in common by qualitative and
quantitative researchers, even if sampling and measures of validity and
reliability/dependability may differ between the two traditions. Before choosing a
method, standpoint, or mode of analysis, a researcher needs to consider the purpose of
her study, the access that she may be given to potential participants and places, the
extent of her resources, the research time frame, 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
flows from it, which is suited to the research question and the study’s aims.
Qualitative research is particularly good for examining whether or not a
particular social phenomenon exists and if so, the nature of the phenomenon. It is less
use for assessing the extent and distribution of a phenomenon, something that is better
left to quantitative research. Qualitative research usually yields extensive data, much
of it descriptive in its initial stages, from which the researcher often seeks to derive an
understanding of key patterns or themes. It is not unusual to discover that one’s
findings are actually relatively modest in scope, if insightful. Qualitative studies may
not (usually) provide systematic generalizable findings, but often problems within the
legal system, best practice insights and the effect of policy shifts can only be
examined using in-depth, qualitative methods. Just as the common lawyer learns to
understand the law by focusing on a small number of important and relevant
precedent-bearing cases, so the qualitative researcher sets out to understand
individuals’ experiences of law, legal meaning, and the justice system and their
relationship with it.

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