Research Process & Strategy

Prep work:

  1. Identify issue(s) to be addressed and your understanding of the topic;
  2. Know your constraints, (cost, time and material availability); and
  3. Understand the requirements for your final product, (type of document & format requirements)

Basic skills:

(See Top 10 Tips for Better Note-Taking in Legal Research, Perspectives, 4:51-52)

Focus: Interview tips, citation essentials, terms and contacts, annotations, organization and designing a template

1)Have some sort of note-taking method that works for you; consider making a template for your sources so you always include critical information (or copy the title page and write terms used, how up-to-date the source is, what issue it related to, etc., on the back of that page)

2)Know and talk to the “experts” in your firm or at the local library to jump start your research project

1.Gathering and analysis of facts, determining critical factors:

a.Factual analysis, critical factors (JUST ASK):

  • thing or subject matter at issue
  • causes of action or bases of defense
  • relief sought
  • persons or parties involved, timing or location of harm or injury
  • procedural issues
  • identification of jurisdiction(s)
  1. If you are unfamiliar with an area of the law, it is better to be over- rather than under-inclusive of facts to avoid missing issues:

(See article: Here there be dragons: how to do research in an area you know nothing about, Perspectives, 6:74-76)

Focus: Getting more info from your experts, secondary sources, efficient searching, finding research guides, loose-leaf services and current awareness tools, using resources properly

  • begin with secondary resources, then return to the facts for reanalysis after you have an understanding of the area

2.Formulate your strategy

  1. Assess available resources:

(See: Principle of power research: integrating manual and online legal research to maximize results and minimize costs, Perspective, v.1, p.93-97

Focus: Reviews the reasons to plan first, states basic principles and gives tips when manual or online research is most productive

Also see: handout with research flowchart and CALR v. manual factors

  • use secondary sources first if you are unfamiliar with this area
  • choose wisely between manual and computer/electronic resources; CD products allow flexible searching at reduced cost
  • consider time and cost constraints, be certain of your deadlines and final work product format
  • leave time to write and follow leads or resolve questions that arise during research

b.Create an outline of your issue(s):

  • arranging issues in outline form identifies relationships and a logical order of research
  • identify any threshold issues, address them first

c.If you have some information and an understanding of the area:

  • take citations to known authority (cases, statutes, regulations) and read the material, then go onto annotated codes, loose-leaf services or digests
  • take a known topic to statute or digest indexes

d.If you need search terms, begin with:

  • dictionaries, words and phrases, thesauri or secondary sources like hornbooks and nutshells to generate vocabulary and find related terms

3.Research the issues:

a.Three basic approaches to legal resources:

  • descriptive or fact words in indexes
  • known topics in tables of contents and indexes, if this fails return to the indexes with words
  • known authority, case, statute or regulation
  • use any related updating material when you first use the source to get the most current information

b.Hierarchy of legal resources to search for:

  • Statutes, regulations or Constitutions
  • the majority of legal issues are governed by statute, even the common law areas often have statutory overlays (common law areas are the ten Restatement topics)
  • read related annotations or commentary
  • this includes legislative history materials
  • Mandatory case law authority
  • search your jurisdiction’s digest
  • search secondary case sources (ALRs, CEB/CLEs, Restatements, encyclopedias and local practice sets)
  • find and examine any cases, Shepardize or Keycite them
  • Persuasive case law authority (when there is no clear answer in your jurisdiction)
  • use secondary sources and finding tools, include other jurisdictions if necessary, try to figure out if your state’s courts are more persuaded by certain jurisdiction
  • find, read and update any cases you find

c.Take notes as you research:

  • with more than one project at a time, good notes allow you to resume research efficiently
  • if you lose the, trail or hand the project on, less time is wasted backtracking or explaining
  • minimal information: citation basics, terms used, notes on content (more detail for more complex projects), and currency of update information
  • if you have a complex project, outline the argument and conclusion for each issue as you leave it, including citations to authority you’ll use
  • see the note taking handout for more detail

d.Review and refine your initial analysis:

  • issues may emerge as you research, accommodate them
  • you may need to go back and flesh out some steps
  • search in secondary resources to support or refute the existing doctrine (at a minimum look in legal periodicals)

e.Update all resources:

  • check pocketparts and updating materials as you read the source originally to be certain it hasn’t been changed before you search for supporting authority
  • use both conventional and computer assisted methods for comprehensiveness and currency
  • see pages 285-286 in M. Rombauer, Legal Problem Solving (KF 240 R64 1991, Reserve), for use of online services to update case law

4.Situations which arise during research:

a.Deadends in the research trail:

  • return to your analysis, did you miss an issue or important facts
  • review the notes you took, were there other sources or terms you missed
  • did you use a resource improperly or incompletely, check prefatory materials and try it again

b.Too much, conflicting or no information:

  • consider your resources, is there one particularly prestigious and timely resource you can use -continue to research if answers conflict
  • finding no information is unusual, review your factual and jurisdictional analysis, consult your colleagues or supervising attorney
  • if you found nothing, were all the resources “related” (same publisher or database), where else can you look, consult bibliographies or practice guides
  • if you found nothing, did you use the materials properly, consult prefatory notes or other instruction sections in the front of the source
  1. When to stop researching:

(See, Terminating Research, Perspectives, v.2, p.2-3)

Focus: reviews common misconceptions about research, offers guidelines on when it’s time to quit and what to do if guidelines conflict

  • you reach time or resource limits, good factual analysis will make you more confident you have answered your questions
  • the same sources keep appearing, or additional sources don’t present any new information
  • when you need to start writing, always leave time to create a good product and to check any further issues which arise as you write