Legal Research for Young Lawyers
“Lawyers do not know so much more law than other people, but they know better where to find it.” - King George II
Course objectives: To guide you in developing a research methodology that can apply to any legal question, big or small. To expose you to new sources beyond Westlaw and Lexis. To make provide you with the tools you need to be cost-effective on Westlaw or Lexis. To help you understand when the research phase should come to an end.
The Major Stages of Legal Research 1. Identification and Formulation of a Research Problem 2. Review of Literature 3. Formulation of a Hypothesis 4. Research Design 5. Collection of Data 6. Analysis & Interpretation of Data 7. Research Report
1. Identification and Formulation of a Research Problem: A problem well put is half solved. This stage is of the utmost importance. In fact, success of research depends upon the selection of an apt research problem and its proper formulation. A researcher must always be mindful of the fact that the question must be phrased in such a way that it becomes viable and allows for the discovery of new knowledge. In other words, your initial research questions should be broad, yet targeted. First, identify your objective. Are you asking the court for relief? Are you opposing relief? Is the goal an evidentiary hearing? A summary judgment? Second, identify the particular research problems that stand between you and your objective. What law do you need to know to make your argument? What facts, statistics, etc. would strengthen your legal argument?
Example objective: To block any preliminary injunction against the federal government’s enforcement of its transgender guidance or, in the alternative, to limit such a preliminary injunction to the particular parties at hand.
Example research questions: A. What is the legal standard for preliminary injunction? B. What additional standards, if any, are implicated in preliminary injunctions against the federal government? C. May/should preliminary injunctions be limited to the parties at hand?
2. Review of Literature The number one way to achieve a review of the literature in an efficient way is…LAW REVIEW ARTICLES! This approach will quickly expose: 1. The explored and unexplored aspects of the issue at hand. 2. The theoretical and conceptual issues raised by your research question. 3. The operational framework of the doctrine governing your research question.
Law review articles can be uncovered in a variety of ways. With efficient Boolean searches in databases (Westlaw, Lexis, etc.), you can quickly uncover the pivotal articles on your topic. Google, law review websites, bar associations, and libraries are less efficient, but are also less costly. Depending on how your firm is charged by paid databases, you may be able to maximize your efficiency by using a combination of paid databases and free sources.
*Beware of Google. While Google can be a fantastic research tool (to be discussed in more detail later on), it—and all general web searches—can uncover a lot of inaccurate or unreliable sources. Be sure to always vet your sources thoroughly.
3. Formulation of a Hypothesis At this stage, you will often find yourself reformulating the research problem you developed in step one. Being better equipped to identify the precise legal issues you now face, you can better frame the central questions. You will likely have eliminated several rabbit holes you did not know were rabbit holes, as well as well-developed wheels you need not reinvent. For example, in the above sample objective and sample research questions, we were limited to broad, substantially procedural questions. But after reviewing the literature, we learned that preliminary injunctions have four prerequisites: (1) a substantial likelihood that the plaintiff will prevail, (2) a substantial threat of irreparable injury but for the preliminary injunction, (3) that the threatened injury outweighs any threatened harm to the defendant, and (4) that the preliminary injunction will not harm the public interest. We have now uncovered four avenues of potential inquiry, the most substantial being (1) likelihood of prevailing. We know that this factor will be the most important because it will require a substantial amount of litigation of the underlying lawsuit. All of a sudden, our inquiry has moved passed a purely procedural inquiry into one of statutory construction, scientific study, and facts. Note that these first three stages may be repeated several times before we move on to step (4). Having uncovered four elements, we need to formulate additional research questions and review additional literature. Our search will now encompass the underlying suit, which hinges on an interpretation of Titles VII and IX, as well as the harm discrimination inflicts upon transgender students.
Once you have fully grasped the full legal framework in which you now operate, you are ready to formulate hypotheses. Your hypothesis should be precise, specific, and conceptually clear.
Examples: 1. The public interest weighs against a preliminary injunction because supportive transgender policies improve lives. 2. The plaintiffs will not prevail because Titles VII and IX protect transgender individuals. 3. The extraordinary remedy that is preliminary injunction must be limited to the particular parties.
4. Research Design
What courts have ruled on your issue(s)? Has the Solicitor General’s Office briefed your issues? What about other governmental agencies (Attorneys General, Governors, the relevant regulating agencies, etc.)? Have lobbyists or charitable organizations briefed the issue, conducted research, or published studies or articles?
After your review of the literature, you should be well-equipped to answer these questions. And with those answers, you can formulate an organized approach to your research. Below is a list of approaches to keep in mind as you create your design: A. Seek out the experts. Your review will likely uncover notable authors and experts in the field. Activate your network to reach out to the experts/expert organizations. You’d be surprised how often they are willing to help, especially when you explain your mission. B. Read the briefs. All too often, lawyers pour over case law in order to formulate their analysis from scratch. The good news is, there is often no need for this! Unless you are researching a true issue of first impression, someone, somewhere has briefed your issue. Or perhaps they’ve briefed an issue so similar to yours that you can easily adapt it. These briefs are perhaps the single greatest resource for formulating legal arguments. But remember, they are strictly starting points. Every case should be Shepardized for recent developments, and every argument should be adapted and tailored to your particular set of facts. C. Read the studies. This is especially true for issues of first impression. If no court has addressed your legal issue before, you can still formulate an argument using scientific research, surveys, statistics, etc. A wise sitting Judge in the 2d Circuit once told me that the greatest amicus brief he’d ever seen was a brief that compiled all of the leading scientific evidence refuting the validity of eye witness identifications. The court ultimately overturned the defendant’s conviction in that case, citing the scientific research extensively. D. Follow-up. Having collected expert advice, briefs, studies, etc., you already have a mini- collection of case law. Start there, follow their citations, and Shepardize them. Only then should you start cold-searches. *Remember, it is pivotal that you search for cases that describe the legal theories involved and not just for fact patterns similar to your case. *Also remember, the importance of focused search terms and queries cannot be overstated. In the digital age, it is the only way to maintain control over your searches. Formulating search queries is a pivotal part of research design.
5. Collection of Data “There are so many people who have lived and died before you. You will never have a new problem. Somebody wrote the answer down in a book somewhere. Everything you need to know, someone has written it down.” - Will Smith What more comforting concept is there in the context of legal research? Any question you have, the answer exists. You simply need to know where to look. Of course, with true issues of first impression, the question may need to be rephrased, or the answer more creative, but you are not alone. There are a plethora of sources waiting to guide you. The “Collection of Data” step is all about utilizing the sources at your disposal to gather the citations you need.
FREE SOURCES Google, Google Scholar, and Advanced Scholar Search Fastcase Casemaker Ravel Law Casetext Supreme Court of the United States website (bit.ly/MA16SCOTUS) Circuit or District Court websites U.S. Government Publishing Office Federal Digital System (FDsys) (bit.ly/MA16GPO) Congress.gov (bit.ly/MA16Congress) U.S. House of Representatives (bit.ly/MA16HOR) U.S. Government Publishing Office Electronic Code of Federal Regulations (E-CFR) (bit.ly/MA16ECFR) Regulations.gov (bit.ly/MA16Regs) Cornell University Law School’s Legal Information Institute (bit.ly/MA16Cornell) ¡3Justia (bit.ly/MA16Justia) FindLaw (bit.ly/MA16FindLaw) National Conference of State Legislatures (bit.ly/MA16NCSL) Rominger Legal (http://www.romingerlegal.com) U.S. Code (http://uscode.house.gov/usc.htm) CFR (http://www.access.gpo.gov/nara/cfr)
Additional Sources HeinOnline Westlaw Lexis Bloomberg Law VERSUSLAW
GOOGLE SCHOLAR With Google Scholar, you can conduct quick, efficient research in a matter of clicks at no cost. It’s content is summarized in its FAQs: Currently, Google Scholar allows you to search and read published opinions of US state appellate and supreme court cases since 1950, US federal district, appellate, tax and bankruptcy courts since 1923 and US Supreme Court cases since 1791. In addition, it includes citations for cases cited by indexed opinions or journal articles which allows you to find influential cases (usually older or international) which are not yet online or publicly available. Notable features include: Hyperlinked embedded case law The “How cited” section takes you to prior and subsequent citations Create an email alert for any case Access it on your smart phone or tablet (some phones have the app, others case access it through their browser)
Maximizing Paid Databases: Terms and Connectors Chart
Type of Search Westlaw LexisAdvance Bloomberg Law Examples Both terms must & and and crime and be present and punishment Either term must Space between or or dance or sing be present words Or Terms must be in /s /s s/ design /s defect the same sentence w/s w/s /s w/sent /sent (all of these options are read as near/25) Terms must be in /p /p p/ trademark /p the same w/p w/p /p infringement paragraph w/para /para (all of these options are read as near/75) Terms must be /n /n /n breach /5 duty within n words (n w/n w/n breach n/5 duty being a variable near/n n/# number) Terms must be +n pre/n pre/n Reckless pre/n within n words onear/n +n endangerment and in the order np/n Reckless +3 specified endangerment Expand root word ! ! ! liab! by any number of characters Permit variation * * * wom*n would find for a specific women and number of woman characters Grouping search () () () (car or terms automobile) /p (injury or harm) Exact phrase “ – “ “ – “ “ – “ “res judicata” Exclude these NOT % clean AND NOT words AND NOT AND NOT BUT NOT dirty BUT NOT clean %dirty Plurals Plurals and Term+s is Does not Crime retrieves possessives are searched automatically crimes searched automatically search for plurals, automatically but can check “include word variations” box Hyphenated terms Hyphenated form If a term might be If a term might be Westlaw: at-will retrieves all hyphenated, hyphenated, retrieves “atwill,” variations of include all possible include all possible “at will” or “at- compound words variations variations will” connected by or connected by or Lexis: type out “at- will” or “at will”
THE PROVERBIAL STOPPING POINT: One of the most frequently asked questions new lawyers pose is: how do I know when my search is over? You need not turn over every rock. But, you should have examined all the boulders. Namely, binding case law, case law upon which binding precedent has relied, and seminal case law. Beyond that, your goal should be to uncover all the persuasive case law most analogous to your case. But, if you have strong citations for your points, you should feel comfortable ending your search. Your briefs and motions need not cite every case on any given issue. In fact, they shouldn’t do this. Judges appreciate writing that is clear, precise, and to-the- point. Bombarding them and their law clerks with unnecessary citations will not serve you. Your review of the literature, your understanding of the legal framework, and your familiarity with your case are your best guides in determining a stopping point. If you’re able to make the point, move on. 6. Analysis & Interpretation of Data In this step, your research and writing phases collide. You have collected all the data necessary, ending your search at the appropriate time.
If in this step, you find yourself encountering the proverbial “writer’s block,” think again. There is no such thing as writer’s block. There is only more research yet to be done. Revisit your research, develop a new strategy if necessary, and flesh out your points further. This step will often circle back to the collection phase, and that is alright. Keep your follow-up searches concise and targeted; do not let yourself go down the rabbit holes you have successfully avoided thus far.
7. Research Report
Alas, the research report! This will be in the form of an actual research report, a memo, a motion, or a brief. Whatever the form, the vital components are originality and clarity. If you devoted the necessary time and attention to Step 6, Analysis & Interpretation of Data, creating your report should be straightforward.
CONCLUSION
Effective legal research boils down to two critical skills: (1) the ability to define the problem in order to seek the answer, and (2) the knowledge to know where to look for the answer. With these two skills, there is no research problem you cannot tackle. Continue familiarizing yourself with the available sources and you will always be well-equipped to research any issue.
Additional Reading/Reference Materials:
Jacobstein, Mersky & Dunn, Fundamentals of Legal Research (6th ed. 1994)
Kunz, et al., The Process of Legal Research (4th ed. 1996)
Berring, Finding the Law (10th ed. 1995)
Cohen & Olson, Legal Research in a Nutshell (5th ed. 1992)
McKinney, Legal Research: A Practical Guide and Self-Instructional Workbook (1996)
Morris L. Cohen et al., How to Find the Law (9th ed. 1989) http://www.LawProse.org
Bintliff, Barbara A. “From Creativity to Computerese: Thinking Like a Lawyer in the Computer Age.” Law Library Journal 88 (1996): 338-51.