TMLL Research Guide - Chapter 12
Comments on the Research Process
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Defining the Issue(s) and Focusing Your ResearchWhen searching for mandatory authority, define your issue fairly broadly. Your goal should be to find every case in your jurisdiction that is relevant to the issue. Use a broad definition to define relevancy - analogize from your facts to similar fact patterns. The issue may not be firmly decided in your jurisdiction, or the prevailing trend among the jurisdictions may be changing from the status quo in your jurisdiction. Your research should include a search for persuasive authority. Find enough cases in other jurisdictions to understand what the trends are across the country, or to urge that a particular reasoning be adopted by your jurisdiction. Use a strict definition to determine relevancy - look for cases more nearly on point with your facts. Read cases from your jurisdiction that do not favor your client's side
as well as ones that favor your client's position. You cannot ignore the
latter; you must figure out a way to deal with them, for example, by distinguishing
the facts. Focusing Your Search for Secondary AuthoritiesMake sure the secondary sources you consult are as up to date as you can find. Both the background information and the citation finding benefits are diluted if you look at sources which are out of date. If searching for secondary sources online:
Remember that the most important use of secondary sources is to speed up the process of locating, and enhancing the understanding of, the primary source materials which are the objective of your research effort. Combining Print and Electronic Research TechniquesComputerized legal research services such as Lexis and Westlaw are extremely valuable tools. The number of legal sources available on the Internet continues to grow at a rapid rate and this is an area that will bear watching as improvements in the various search engines and access occur. At the same time, even though the full text legal systems have been available for many years, students, faculty and attorneys still make heavy use of the print sources. Some of this relates to differing comfort levels in reading lengthy documents online. Some of the use of print is related to the high cost of electronic services in the practice environment. Unlimited use of Lexis and Westlaw under educational contracts that are funded by the law school serves the purpose of allowing law students to learn the systems in a setting where cost is not a concern. Unfortunately, students often find when they go to a job setting that summer associates or law clerks are prohibited from using the systems at all, or their use is extremely limited for cost reasons. Also, some important materials are not available or are difficult to search in online format. And finally, because the goal of most research projects is to get to a point where one feels confident that all relevant authorities have been found, the best way of accomplishing this is to search in both print and online when they are available. For all these reasons, learning how to use the various formats effectively gives you the best foundation to approach a given research problem. While availability of sources will vary and shortcuts may be necessary, it is important to understand the complete picture so that you can make informed choices. As has been stressed from the beginning, searching for primary sources, either using print indexes or searching in online case or statute databases without a basic understanding of the terminology can waste valuable time. Secondary sources, either online or print versions, should normally be consulted first. Don't overlook the value of hornbooks and treatises that are not often available in electronic versions. In general, unless one finds a specific statutory cite in secondary sources, it is often easier to locate statutes in print indexes than in online databases. Because of the specificity of language used by those who draft statutes, framing online search requests can be difficult. Starting with print research to locate relevant statutes is a logical step if the print code is available. If the print index does not yield relevant entries, a search in the online annotated code database would make sense. Occasionally terms that do not appear in the statute text are in the case annotations. If online research is all that is available, natural language searching for statutes may be more helpful than terms and connectors. Whether print digests or full text databases are more efficient for locating case law varies from problem to problem. Framing online requests that retrieve all the relevant cases while at the same time screening out a lot of irrelevant ones is an art and, in fact, may not be possible depending on the nature of the problem and the terms involved. Relying solely on online case databases or, conversely, relying solely on digests, can result in missing key authorities. If online research is available, validating cases to make sure they are still good law is almost always more efficient online than in print. In the law school environment, Lexis and Westlaw subsidize printing costs,
including providing paper and toner. This is another source of contention
in law firms, where printing is not free. In addition to the tremendous
potential for waste, professors find that students who print large volumes
of material often are overwhelmed. Spending a few minutes online identifying
the relevant documents as opposed to printing randomly is well worth it.
Both systems allow printing of selected pages of documents and this is
often more efficient than printing entire sources. And Last - the 15 Minute RuleDo not spend more than about 15 minutes in an index or database in which you are not finding anything. Go on to another source and, if you need to, come back to the first source later when you have a better sense of what you may be looking for or different research vocabulary to work with. Keep an accurate research log and be flexible.
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