The Research Process
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. – The American Bar Association, Model Rules of Professional Conduct R. 1.1
In order to conduct legal research effectively, a lawyer should have a working knowledge of . . .the process of devising and implementing a coherent and effective research design. – MacCrate Report
7.1 Learning Objectives
In working through this chapter, students should strive to be able to:
Describe the steps of the research process.
Assess which research techniques are best utilized at each step of the process.
Understand the recursive nature of the research process.
Describe techniques a researcher can employ when faced with too much or too little information.
7.2 Essential Steps of the Research Process
So far in this text we have discussed primary and secondary sources of American law and techniques for locating them in print and online environments. Now we will turn our attention to how to integrate those discrete techniques into a larger process to guide us in our research. The steps for researching most legal problems will follow a logical progression:
Familiarize yourself with the specifics of the legal problem.
Define the scope of the research.
Construct search queries.
Gather primary authorities.
Analyze and update primary authorities.
Let us look at each step in turn and explore the most efficient techniques, or combination thereof, that the researcher can use at each step of the process. At the end of the chapter, we will address some common concerns that researchers have once they have begun the research process.
7.2.1 Familiarize Yourself with the Legal Problem
Legal research does not exist in a vacuum. Lawyers engage in research to answer a question of law about a specific problem. The researcher must know intimately the facts of that underlying problem, as this is essential to being able to judge what legal authorities will apply to it.
The researcher may begin to ask some questions of the legal problem at this stage of the research. Who are the people or entities involved in the problem? What is their relationship? Are there any obviously missing pieces of information from the scenario forming the basis of the problem? The researcher will likely return to the facts of the client’s legal problem repeatedly over the course of the research process in an effort to determine which facts are critical to answer the problem, but at this initial stage the researcher must do his best to internalize the basic story structure to facilitate revisiting those facts at a later stage.
The organized researcher should also ask some additional questions to frame the process of the research at this stage. Whether the legal problem comes directly from a client, a supervising attorney, or a professor, the researcher should clearly understand what work product is expected at the end of the research process and when that work product must be completed. This will aid the researcher both in his final selection of primary authorities and help him establish a timeline for which to progress through the various stages of research.
Last but not least, the researcher should always note if any primary or secondary authorities have been recommended as a place to begin his research. A supervising attorney or professor may well refer to primary or secondary authorities related to the problem; the researcher can use both to find additional primary authorities on point as described later in this chapter. Such recommendations may save the researcher much time in the initial stages of gathering primary authorities.
7.2.2 Define the Scope of the Research
Once the researcher has familiarized himself with the facts of the legal problem and has an idea of the timeline to which he must adhere, he then must define the scope of the research. An easy mistake to make early in the research process is defining the problem too broadly and simply researching any legal topic or terminology that comes to mind; the result is typically that the researcher is overwhelmed by the number of primary and secondary authorities identified and has no clear idea if the legal problem has actually been addressed. In order to find relevant authorities quickly and efficiently, the researcher needs to form a clear picture of what he needs to find from the onset of his research. To narrow the scope of the problem, the researcher should consider the following:
Choice of Law: Which jurisdiction’s law applies to the problem?
Venue: Which court would any legal action relating to the problem be (or has already been) filed in?
Area of Law: Do the facts of the problem suggest a particular area of law on which the researcher will want to focus his attention?
Issue statement: Can the researcher identify a clear question that the research must seek to answer? Such an issue statement need not be phrased in specific legal terminology such as one would find in a brief or memorandum at this point, but the formulation of the question can still serve as a limiting factor on the research.
Hierarchy of Authority: At this point, the researcher may also want to sketch out what sorts of authorities will be mandatory authority for the problem.
Sometimes this information will be readily apparent from the legal problem; other times some initial research may be involved.
7.2.2.1 Techniques for Defining the Scope of Research
Secondary sources can be key at this stage of the research process. A treatise may inform the researcher whether the issue is one of state or federal law; a practice series may specify related areas of law or aid in formulating the issue statement. The appropriate secondary source to use at this stage will vary with the researcher’s prior knowledge of the legal topic to be researched. Thus the researcher may need to use a series of secondary sources for guidance, starting with a more general resource like a legal encyclopedia and moving on to a source that discusses the area in more detail. Review Chapter 6 for an overview of the various types of secondary sources and methods useful for locating them.
If in the early stages of the process the researcher has been informed about relevant primary authorities, he can use those authorities to find relevant secondary authorities. Citators are useful tools for this purpose. As the reader may recall from Chapter 5, citators can be used to find a listing of all the primary and secondary authorities available on a particular research platform that cite back to the original authority under investigation. This is a quick way to see a list of treatises, practice materials, and law review articles on the platform that may relate back to the topic. The researcher can narrow these results by using searching and filtering functions provided by the citator. Statutory annotations may also lead a researcher to useful primary and secondary materials.
7.2.3 Construct Search Queries
Once the researcher has limited the scope of his research to a specific area of law from a specific jurisdiction, he will still need to research that jurisdiction’s area of law to find specific authorities applicable to the problem at hand. To do this, the lawyer will need to generate specific terms for which to look in primary or secondary sources. Constructing this keyword list is often the first major hurdle in the research process, but it is a useful tool for proceeding in both print and electronic research. Search terms may be general at this stage, e.g. the name of the relevant jurisdiction or a broad area of law, or they may be more specific, e.g. facts from the initial problem or legal terms of art already provided.
7.2.3.1 Techniques for Constructing Search Queries
The researcher may need to think critically about the terminology employed as a means of either broadening or narrowing his research. For instance, if the researcher is investigating a defense against a copyright infringement claim, the researcher may identify “copyright” as the relevant area of law to investigate. However, depending on how a given primary or secondary source is organized, the researcher may need to broaden or narrow that terminology. Copyright is a subset of an area of law more broadly termed Intellectual Property, and a legal research platform may organize their secondary sources under the broader category rather than the narrower one. On the other hand, a common defense to copyright infringement claims is the defense of fair use, and it has a substantial amount of secondary literature in its own right. So, the researcher may want to narrow that initial term of “copyright” to the more specific term of “fair use.” In print or electronic format, an index may help the researcher narrow these terms by having specific sub-headings under a more general topic heading. As a general rule, if the search terms the researcher is utilizing are yielding too many results, try narrowing the search terms; if yielding too few results, try broadening.
Questions can be posed to the facts of the initial legal problem to help construct the keyword list: What is the relationship between the parties of the legal matter? Are there things or places that are in dispute? Have any legal terms of art been discussed? Have legal claims or defenses been identified? The answers to these questions may well have been identified in the first two stages of the research process and can now be incorporated into a list of search terms.
One way to broaden a search is to incorporate synonyms of terms on the initial list. If a critical fact of the legal problem involves a dorm room, perhaps opinions discussing buildings with similar characteristics be useful for analogies, e.g. an apartment or a duplex. If a case involves a motorcycle, perhaps that vehicle shares materially relevant features with other types of automobiles. Such synonyms can be useful not only for reminding the researcher of options he should be aware of while using topical indexes but also in formulating advanced search queries discussed in Chapter 5.
Recall from Chapter 6 that one of the most valuable uses of a secondary source is introducing the reader to the appropriate vocabulary of the legal topic it covers. The commentary and analysis or even the organization and finding aids of a secondary source may assist the researcher in determining the relevant terminology. Such sources may assist in generating broader or narrow terms by looking at the index or table of contents, and the cases discussed in the secondary source may suggest relevant synonyms or fact patterns worth adding to the search term list.
7.2.4 Gather Primary Authorities
Now the researcher must employ the search terms and queries generated to gather primary authorities. The researcher must take care to find not only the most relevant primary authorities but also those that could be relevant. It is a constant balancing act to make sure the search queries are not too broad or too narrow as discussed in the prior section; the researcher will improve his balance with experience. Generally, as indicated throughout this text, it is in the researcher’s best interest to start narrow and then broaden so as not to be overwhelmed by the number of authorities identified. At the same time, the researcher must not develop tunnel vision and limit his research too far. A common mistake to new legal researchers is to focus too narrowly on the specific facts of the case. However, there may not be an opinion with facts extremely similar to those of the researcher’s legal problem. Thus, he should not discount materials on the applicable legal principle simply because the facts do not align directly with the legal problem in front of him.
One way of narrowing the initial research pass into primary authorities is to focus on gathering those authorities that are binding on the legal problem. If the researcher is working on a legal problem governed by federal law that will be filed in the Southern District Court of Texas, he should not start by researching cases in the Sixth Circuit Court of Appeals or investigating Oregon state court opinions. Persuasive primary authorities should be pursued only after the researcher has determined that the binding authorities do not sufficiently address the legal problem. However, the researcher would be foolish not to note persuasive authorities that seem particularly relevant if stumbled upon during the search for mandatory authorities; such a note would save the researcher time in the event that persuasive authority proves to be a necessary avenue of inquiry.
7.2.4.1 Techniques for Gathering Primary Authorities
At this step the researcher will employ a combination of many of the research techniques described in previous chapters to thoroughly investigate primary authorities for relevant materials. Below is a suggested progression of research techniques. Remember that not all legal problems are governed by all sources of law. Secondary sources will often alert the reader as to which sources of law govern in an area of law, but a thorough researcher will perform his own investigations on the topic to verify.
Secondary sources: Utilize secondary sources to identify the key primary authorities on a legal topic. See Chapter 6 for a discussion of secondary sources and techniques for locating them.
Constitutional provisions, statutes, and regulations: Investigate relevant constitutional provisions, statutes, and regulations by using the search terms previously identified to search, browse, and filter through electronic research platforms as described in Chapter 5 or browse the table of contents or indexes in print as described in Chapter 2. Do not forget that finding aids such as indexes and tables of contents may serve the researcher as well in the online environment as in the print.
If the researcher identifies relevant constitutional provisions, statutes, or regulations, he should investigate the annotations for references to relevant primary and secondary authorities.
Remember that researchers can use citators to trace a legal issue forward in time; a citator will identify other primary and secondary authorities citing back to the original constitutional provision, statute, or regulation under discussion. Review section 5.5. for a more thorough discussion of the uses of citators.
Judicial Opinions: Investigate judicial opinions by using the search terms previously identified to search, browse, and filter through electronic platforms as described in Chapter 5 or to browse the relevant digest as described in Chapter 3. Do not forget to utilize any topical organization system available either in print or electronic format. Once the researcher has identified some relevant cases, he can employ them to find more authorities on point:
Look at the headnotes of the opinion for relevant topics and/or key numbers. Use them to find further primary authorities on point.
Use a citator to trace the issue forward in time and find more recent primary and secondary authorities on point.
Investigate the authorities to which the opinion itself cites and on which it bases its analysis. The citator may include a Table of Authorities for the case which will list all the primary authorities mentioned in the opinion.
7.2.5 Analyze and Update Primary Authorities
This is perhaps the most time-consuming and challenging piece of the research process. After gathering the relevant primary authorities, a researcher should read each authority carefully to understand the legal issues being discussed and the relevant facts. Such analysis must include updating each authority through the use of a citator. The researcher must then analyze each authority on its own and how it relates to the other authorities to synthesize rules relevant to the problem at hand. This step is where research and writing become inseparable; the researcher’s analysis of the primary authorities and rule-formation will create a framework for the final written product.
7.2.5.1 Techniques for Analyzing and Updating Primary Authorities
Topical secondary sources providing in-depth treatment of a legal subject, such as treatises or law review articles, may provide analysis that will aid the researcher in her understanding of the primary authorities. Refer to Chapter 6 for a discussion of which secondary sources tend to offer such treatments.
Citators will alert the researcher to any negative treatment of a primary authority as explained in Chapters 3 and 5. An authority will be marked accordingly if it has received negative or cautionary treatment by other authorities. For opinions, citators will typically also indicate the level of analysis the opinion received in the citing opinions; the analysis of the case by other courts may also inform the researcher’s analysis. The citator may indicate which legal issue in the original opinion was treated negatively by the citing opinions. The researcher can use this feature to determine which citing opinions must be analyzed to place the original opinion in the appropriate overarching context of the legal issue.
7.2.6 Research and Writing as a Recursive Process
Though the research steps above progress in a logical fashion, the process is not always as linear as the steps may indicate. Research and writing is often a recursive process; the more information the researcher gathers and analyzes, the more he may need to revisit earlier assumptions or fill in gaps that were not apparent in the first research pass. Any of the steps of the research process may be utilized at various points on the research timeline. For instance:
A researcher may find after consulting some secondary authorities that he has not correctly identified the relevant areas of law or which jurisdiction’s law should be applied, thus prompting a re-evaluation of the scope of the problem and the search terms employed.
Issue statements may be refined as more information is gathered, which may lead to more tailored search queries that yield a different line of primary authorities.
A researcher may begin to write up his analysis of the gathered materials and find that he is making statements that his authorities do not explicitly support. He must then revisit primary authorities overlooked at the beginning stages of research.
Facts that did not appear relevant in the initial stages of research may be highlighted in opinions as crucial pieces of the puzzle; the researcher will then need to add them to the list of search terms for further investigation.
All of these scenarios and more are possible during the research and writing process; revisiting earlier stages of the research process is a normal and natural occurrence.
7.2.6.1 Recurring Research Techniques
Much as the steps of the research process may be revisited over the course of the investigation, the finding aids and electronic research techniques are often utilized repeatedly at different stages of the research process. A researcher will likely use the features of a citator on every primary authority found. He will note topics and key numbers mentioned in secondary and primary authorities that may be found at different stages of the process. The index of a useful treatise may be referred to frequently as the researcher discovers new legal terminology and concepts from the treatise itself or in the primary authorities. These techniques are tools to be utilized during the myriad iterations of the research process rather than static, individual actions.
7.3 Common Research Concerns
Even with a logical research process and recommendations regarding techniques to use to perform the research, the researcher may still find himself asking questions about when to stop his research or what to do if he has found too much or too little information. The final part of this chapter recommends criteria and actions to consider in these scenarios.
7.3.1 When To Stop Researching
“How do I know when to stop?” is a very common question among novice researchers. Unfortunately, there is no singular sign that will indicate to the researcher that he has completed his task; the answer will vary not only by problem but by the time the researcher has in which to create the end work product. Generally, if the researcher has found authorities that answer the initial issue statement and subsequent issues that have come to his attention during research, if he has pursued the relevant avenues of research discussed in this text, and if he is seeing the same authorities referred to over and over again, he is in a good position to stop.
7.3.2 Not Finding Enough Relevant Authorities
If a researcher cannot find enough, or any, relevant authorities, he may need to revisit some of the earliest steps of the research process.
Refer back to the initial information received about the legal problem and make sure you understand the information given to you. Are you overlooking any critical information or was any critical information missing from the information you received?
Return to the secondary sources you identified initially or find different secondary sources on point. Read the materials carefully to be sure you understand the material presented.
Rethink your search terms. You may need to broaden the terminology or concepts for which you are searching.
Consult with a reference librarian or another legal information specialist as described in section 6.3.1.4. Be prepared to describe in detail both the legal problem and the steps you have taken to research the problem. This individual may be able to suggest sources or research techniques you have overlooked or help you modify the techniques you have been using.
7.3.3 Finding Too Many Relevant Authorities
If the researcher is overwhelmed with authorities, the techniques to be employed are similar to those utilized when one is underwhelmed as described section 8.3.2.
Refer back to the initial information received about the legal problem and make sure you understand the information given to you. Are you overlooking any critical information or was any critical information missing from the information you received?
Return to the secondary sources you identified initially or find different secondary sources on point. Read the materials carefully to be sure you understand the material presented.
Rethink your search terms. You may need to narrow the terminology or concepts for which you are searching. If you are using electronic resources, be careful about filtering information appropriately. You may also want to perform searches within the initial results lists.
If you had broadened your search to primary persuasive authorities, refocus on primary mandatory authorities or only the most highly persuasive authorities.
Consult with a reference librarian or another legal information specialist as described in section 6.3.1.4. Be prepared to describe in detail both the legal problem and the steps you have taken to research the problem. This individual may be able to suggest sources or research techniques you have overlooked or help you modify the techniques you have been using.
7.4 Concluding Remarks
It is an oft-quoted maxim that research is an art, not a science. Much as with painting, the novice must work diligently at developing his basic skills by practicing with the tools of his trade; repetition and exposure to new materials accretes those skills into the knowledge necessary to create detailed works of art. This text has outlined the basic tools available to the legal researcher and described skills he should strive to develop; time and practice will evolve the researcher’s skills into experience and allow him to competently address the legal problems that will come his way.
7.5 Recommended CALI Lessons for Further Practice
CALI hosts an impressive number of interactive lessons on its website. The following lessons on research methodology touch upon material covered in this chapter. They would be a great place to start for students looking for further practice on the concepts introduced in this chapter!
7.5.1 “Legal Research Methodology” by Wendy Scott and Kennard R. Strutin
Summary: a series of tutorials lead students through situations and problems commonly given to new attorneys and student interns. Each section contains questions that test the students’ responses to different situations and their understanding of the reasons behind legal research. The exercises use realistic research problems and demand that students begin to think logically and practically about legal research.
Lesson ID: LWR07
URL: http://www.cali.org/lesson/567
7.5.2 “Hold ’em, Fold ’em, Walk Away or Run: When to Stop the Search” by Yolanda Jones
Summary: Knowing when to stop is important for efficient and cost effective legal research. This exercise will cover several factors which you may wish to consider.
Lesson ID: LWR31
URL: http://www.cali.org/lesson/763
