Monday, February 05, 2007

Improve Basic Research Skills

Whether you are doing legal research, or another kind, online or paper, here are some basic research skills that will improve your results:

I. Develop a Research Process
A. Stop to think before you start researching. It's worth the time you put in at the start because you'll be much more efficient (get it more quickly) and effective (get everything you need) if you plan!
B. Identify significant facts, and develop search terms.
1. Be creative and come up with synonyms.
2. Be flexible and add new terms when you run across them in your research.
3. Be meticulous and note the date you added the new term -- you might want to re-run earlier searches using the new term!
C. Frame issues (you may need to read a bit in a hornbook or textbook to help identify issues)
1. May need to subdivide, narrow or broaden, or even add
issues as research continues.
2. Arrange in a logical manner, with issues which depend upon
the outcome of other issues listed later.
3. Most methodical research method is to exhaust all relevant
authority on 1 issue before beginning research on another.
Keeps your research focused; keeps you from straying
into irrelevant areas; and lets you quickly get an idea
of the time required for the project. Legal issues can't
be compartmentalized by the source of law.
D. Identify relevant sources (whether paper or electronic) For any kind of research, think about what kind of resource might answer your question. Would there perhaps be a statute or regulation on this matter? Might it be discussed in a journal article or a practice manual?
1. List them in the order to be used for each issue, at least
when you are just a beginner in legal research. This will
keep you from omitting a source or researching in a less
efficient way.
2. Good beginning places (for law) if you are unfamiliar with the
a. Hornbook or Treatise, nutshells.
b. CLE and jury instructions (excellent if available; jury
instructions are good sources for the elements of the cause of action. CLEs will mention the state cases, statutes, constitutional sections that will govern.)
c. Law journal articles (or other journals, too).
d. Legal encyclopedias (state encyclopedias are better if
available because national are too general)
e. ALR (American Law Reports, 1st - 4th and Fed.) Good
if your case is very fact-sensitive or if there are no cases in your jurisdiction. These survey cases nationwide, so you can see what other states have done, find a case that is more factually similar, and discover if there are clear
patterns among the states or circuits.
3. To decide where to start, use these pointers:
a. Look at comprehensiveness, type of material included, level of detail and dates covered, to choose the set or database that best matches your research needs.
b. For broad overviews, choose paper sources, such as hornbooks, treatises or a local encyclopedia or CLE materials. Don=t go online until you have enough background to know the terms of art and the most important primary sources of law in the area!
c. For broad concepts, begin with paper sources, as in b, above.
d. For statutory or regulatory research, usually begin with paper sources.
e. For common terms or terms that can have more than one meaning,
begin with paper or a carefully structured electronic search.
f. For unique or unusual words or phrases, choose electronic searching.
g. For cases that define a word or phrase, use the set Words and Phrases or the volumes at the end of most digests marked Words and Phrases.
h. For proper names and terms of art, choose electronic searching.
i. For fact sensitive research (details of the facts would change the outcome), choose electronic sources or ALRs.
j. For multi-year or multi-jurisdiction searches, choose electronic sources or ALRs.
k. For the elements of a cause of action, try looking at jury instructions!
l. If a computer search turns up nothing, use the books! There may be a problem with the term(s) you used, or you may be in the wrong database.
D. Research the issues: Take careful notes of which sources you have looked at, what terms you searched and what you found. Include dates! You will save yourself time in the long run, because you will avoid redoing research. Develop your own method of taking notes, but be orderly and consistent. Write down the complete cite! If you are on Westlaw or Lexis, use the "Research Trail" or "History" to keep your records. You can keep refreshing these so they don't disappear after 3 days!
1. As you gain expertise and confidence, you'll develop
2. You'll also develop insight into when it's safe to
terminate your research. Generally, it's better to err on
the side of caution, but you need to balance cost as well.
Eventually, you will notice that all the cites are to statutes
and cases that you have already seen. This is a sign that
you have found the leading cases in your jurisdiction.
E. Read before going online unless you are confident you know
the terms of art in the area!!!!
F. Communicate your solution - organizing and writing legal
memoranda is beyond the scope of this course, but vital.

II. Statutes first!
A. Look first at any relevant statutes. More law is governed
by statutes than it looks like when you are in law school. If
there is a governing statute, that is what will decide the case
more than case law. Also, annotated statute books are excellent
case finding tools, and can lead you to forms, and other resources.
B. Be sure you have updated and shepardized all statutes. Re-
member to use interim supplements and legislative services or
online services to be sure the statute hasn=t changed.
C. Follow up with regulations from relevant agencies, if any.
D. Be alert to constitutional issues, as well.

III. Finding Relevant Cases
A. If there are any statutes, regulations, constitutional issues, be
sure you have looked at cases construing them. If not, or after
doing that, use digests to locate cases by subject matter. Remember
to use the West key number if you have a case from another juris-
diction to locate cases in your jurisdiction=s digest. Key numbers
can also be used on Westlaw to help target your search.
B. Be aware of jurisdiction! If the case is higher up in the judicial
chain of command in your jurisdiction, it is mandatory authority.
If the case is from another jurisdiction, it is only persuasive. If it
is the same court, your judge(s) will probably follow, but are not
obliged to in the same way as if the precedent were from a higher
C. Shepardize all relevant cases, not only to make sure they are still
good law, but also to find other relevant cases in the same jurisdiction.
Sooner or later, your shepardizing will lead you in a circle; when that
happens, you will know you have probably found all relevant cases in
your jurisdiction.
D. Update your research by looking at advance sheets, using online or
CD-Rom services, the latest Shepards or Westlaw=s new West Cite service.

1 comment:

Betsy McKenzie said...

Readers can tell this is an older piece of writing! ALR 5th is now available and Westlaw's KeyCite is no longer new. Also, if I were re-doing this today, I think I would refer less to books -- annotated statutes online are just as handy (though sometimes harder to research!) for pointing the researcher to cases and other materials. Also, I think concept cases research well with Natural Language or Freestyle searching on Westlaw or Lexis. It all depends on your contract and whether you pay too much to start your research with a general "fishing expedition."