By Ashley Ahlbrand • November 06, 2014•Writers in Residence
When I haven’t been writing about new legal research tools, I have been discussing common deficiencies in legal research skills, such as legislative history research or research in administrative law. As my Writer in Residence year draws to a close, I wanted to take a step back and address the legal research process more broadly. When I began this column in January, I mentioned that legal research is often taken for granted as a lawyering skill, quite simply because we’ve all done research at some point in our education; but as I explained, legal research is a different ballgame, and must therefore be played by different rules. When you’re researching an academic paper, you might likely take the catch-all approach, and simply try to find everything you can on a subject, weeding through it later. Legal research, especially when you’re practicing law, costs both time and money, neither of which is something you can afford to waste. Your client will not be pleased if billed for countless hours of wasteful research, and often your contract for a commercial database will consist of charges per search or per document viewed. No, the catch-all approach to research is not the optimal strategy in law. You need to have a plan, and you need to stick to it.
Step One: Strategize
Before you dive into your research, have a plan. When I am teaching legal research in the first-year curriculum, I tell them to start their research by answering three questions:
- What jurisdiction are you researching in?
- What type of content are you searching for?
- What research question do you need to answer?
This is a simplified approach to the research strategy, but if you can keep these three questions in mind, it’ll help you stay focused during your research.
Jurisdiction will ordinarily be fairly obvious, but remember that, if the case is going to be a matter of first impression in your jurisdiction, it will become very important for you to research outside of your jurisdiction so that your argument can try to persuade the judge to adopt a particular jurisdiction’s approach. Remember also that just because you’re practicing in one jurisdiction does not mean you will always be applying the laws of that jurisdiction. For instance, many contracts contain forum clauses so that, if legal issues arise over the contract, laws of a particular jurisdiction will apply.
Content Type - When you’re conducting legal research, often you will be looking for answers in more than one type of law. (You don’t want to rely solely on cases if it turns out that the situation is governed strictly by statute!) You will often use different types of legal materials to answer different aspects of your research question. For instance, the legal issues in your case might be governed by statute or regulation, but you might use case law to figure out how to apply the unique issues of fact in your case to the issues of law. I would recommend focusing on one type of legal material at a time in your research to help you stay on track and avoid being buried in an overwhelming amount of information.
Research Question - Your research question may turn out to be a series of related questions. First, you’ll want to address the issues of law in your client’s case, and then how to apply the issues of fact. Clients tend to bury you in detail when they tell you their stories; try to boil the story down into its essential elements so you can formulate simple, succinct research questions.
Step Two: Dive In
Once you have a research plan, dive in. The research process has a rhythm to it, and you’ll find it’s fairly iterative. No matter what research platform you use, remember that it’s critical to update the laws and cases you use in your research, to make sure you’re not relying on something that’s out of date or overturned. Make use of tools like headnotes and citators to help you find related materials and expand your research. Keep your research question(s) in mind to make sure that your research addresses all aspects of your client’s case. It’s also good strategy to be aware of the cases or laws that could be applied against your client, so that you’ll be prepared to argue against those in court. The strongest argument acknowledges its weaknesses and turns them into strengths.
Step Three: Knowing When to Stop
I’m not going to lie – this is a difficult question to answer. No stop sign will pop up once you’ve Shepardized your last case. It’s more of a gut feeling. If every search is bringing up the same list of cases and statutes, for example, that’s a good sign that you’ve found what you need to find. Make sure you’ve used a citator to ensure you’re relying on good law, and make sure all research questions have been addressed. Then you can start piecing together the results of your research to form your legal argument and ensure that no holes have been left unfilled.
Keep it Organized
The other issue with legal research is staying organized. If you've already found a document once, you don't want to waste time searching to find it again because you forgot to save it the first time. Most commercial databases come with a foldering option, so you can save documents in folders organized by case or question. You may also want to consider any of a number of tools out there designed to organize your research.
Timestream creates an interactive timeline to help you organize and present your client’s case. You can drag documents into the timeline, work collaboratively on the timeline with colleagues, and use their mobile app to snag documents (like photos of a crime scene) on the go. (If you’re still in school, you can get a faculty or student license for free!) Timestream’s greatest feature is how easily you can get a visual display of a client’s case over time. Did I mention it is both Mac and Windows compatible?
Case Management software is becoming a real time-saver as well. Products such as Clio allow you to easily track time and billing, create and integrate task lists with a work calendar, create, upload, and organize documents by matter, and much more. With anything cloud-based, you’ll want to be careful with the security of your files and data, but case management software, because it’s designed for attorneys who deal in confidential information, typically comes with high-grade security.
Beyond the sophisticated, law-designed tools like Timestream and Clio, you may also want to think about simpler tools that can help you organize your notes and research. Even something like Evernote can be an excellent tool for organizing your note-taking during meetings and clipping articles for research when web-browsing. For something a little different, you could try out Linkwok, which essentially creates an electronic whiteboard for you to collect documents and parts of websites while running Internet searches, then annotate and organize those captures to tell the story of your research and share it with others. Again, remember that when you’re doing any research for a client, you have to be aware of information security issues so that you can keep your client’s information safe.