Research Guides

TMLL Research Guide - Chapter 8


Initial steps

When facing any research problem that involves unfamiliar territory, the wisest approach is to take some time at the outset to acquire background information.  Without knowledge of the terminology and the issues, one can waste an inordinate amount of time unsuccessfully searching for primary sources in either print indexes or full text databases.

Secondary sources are good places to gain helpful background information.  Hornbooks cover broad legal topics, but may at least provide a paragraph or two about a particular subject that could serve as an overall framework.  Law review articles deal with topics in greater detail and may give, in many instances, more information than is needed.  If approached carefully, however, they can arm the novice with terms that will make searching and reading the primary sources an easier task.  One should never view use of a secondary source as a substitute for the primary sources and indexes of the particular jurisdiction, but they can be viewed as excellent jumping off places.  Encyclopedias, either general ones such as American Jurisprudence 2d or Corpus Juris Secundum, or jurisdiction-specific ones such as West’s Maryland Law Encyclopedia may also be helpful as starting points, although the quality of the information varies topic by topic and these tools must be used with great care.

Law review articles on particular topics can be found by using full text databases on Lexis.  Citations to articles may be located using either of the two index databases that are accessible from the library’s home page, the Index to Legal Periodicals and LegalTrac. The objective in looking for law reviews is to find one or two good articles to use as starting points. The more recent the article, the better, because the law changes rapidly.  Articles in bar journals will be practitioner oriented and are less likely to be helpful.  Avoiding articles dealing with the law of particular states may be a good idea, unless the article happens to cover the state in which your problem is set.  Printing or copying entire law review articles is generally a waste of time and paper and would be incredibly expensive in a work setting.  Skim articles just to get an idea of what is involved in the topic.  If they are good ones, you may want to return to them toward the end of your research to help put what you have found in context.

In addition to gathering terms and issues, you may notice cites to apparently relevant statutes or cases.  Recording cites from other jurisdictions may not be a good use of time at this stage.  However, noting a few cites from your jurisdiction that appear to be especially on point may save you time in the later phases of your research.  If you can find one fairly recent case in any jurisdiction that is precisely on point with the issue(s) you are researching, you can look it up and note the relevant topic and key numbers for later use in the digest.

Finally, in terms of background, it is well worth spending a few minutes with the section in the Bluebook that deals with the particular state.  The names of courts vary from state to state and you will often have to identify which court decided a case simply by looking at the reporter abbreviation.

Searching for statutes

Once you are familiar with some of the terminology, the annotated code is a logical next step for researching the law of a particular state.  While some topics may still be covered only by case law, it is extremely important that you not make that assumption without checking the code.

The index volumes for annotated codes are similar to the Descriptive Word Index volumes in the digest, except that they lead to statute sections rather than to topics and key numbers.  Indexes can yield obvious entries but they can just as easily have entries that are not so obvious.  Background information from secondary sources may certainly help with this process.  However, a good rule of thumb is to limit the time in any index to no more than 15 minutes.  If you can't find something fairly quickly, go on to another source.  Eventually, you will either find a reference to the statute in cases, or, at least you may find additional information that will help you when you come back to the code at a later time.

Assuming that you do find a relevant statute section, it is a good idea to first check the pocket part and any other supplements before reading the text of the code section.  Often you will find that the statute has been amended.  You should read the most recent version, as opposed to an obsolete one.  Read the current language of the statute very carefully, word for word.  Check the sections immediately preceding and following the section you found because they are likely to deal with the same general subject area and may, therefore, be relevant to the problem.  Also, many times there are "definitions" sections that define terms and it is important to look for these.

NOTE: There may be times in the practice of law that you will need an older version of a statute.  You may be litigating a case that arose before recent amendments.  In general the law that applies is the law that existed at the time of the occurrence.

Annotations are found after individual code sections.  Annotations may include cases decided in the particular state that have interpreted that statute.  While the annotations may not include a comprehensive listing of cases construing the statute, those cited are typically important and the cites should be noted.  You will not find case annotations for all statutes.  Some have never been the subject of litigation.

Thus far, the discussion of statutes has revolved around print publications.  State annotated codes are also available on Lexis and Westlaw.  However, searching for statutes online is often more difficult and time consuming than using print codes.  An advantage of using Westlaw or Lexis is that the databases are updated frequently and it may be easier to find recent statutory changes using Westlaw or Lexis than in print sources.

Searching for cases

There are several strategies for searching for case law in a particular state and researchers develop their own preferences for tackling this aspect of legal research.  The traditional mechanism for finding cases by subject is to begin with the Descriptive Word Index of the appropriate print digest, identify relevant topics and key numbers, read the summaries of cases found under the topics and key numbers and then look up and read the cases.  This is a time-tested, valid method that is still widely used.  Topic and key number searching may also be done online on Westlaw.

Variations on this theme may occur when the researcher, through secondary sources or code research, finds several cites to possibly relevant cases.  Sometimes it makes more sense to begin by looking up and reading some of those opinions before trying to use the digest.  Because the regional reporter system and the digest system are interrelated, noting the topics and key numbers at the beginning of relevant cases can be a helpful shortcut to using the digest, although one should still check the index to make sure there is not an obvious entry that should be consulted.  Once cites to cases have been found, they can be reviewed either online or in print. Our library has current subscriptions to all print regional reporters, but does not maintain current subscriptions to official reports for states other than Maryland.

Other possibilities for finding cases in a particular state include using A.L.R. annotations and BCiting, Shepardizing, or KeyCiting.  There is a table of jurisdictions at the beginning of each A.L.R. annotation that allows the researcher to quickly find cites to cases of a particular state within the A.L.R. annotation. BCiting, KeyCiting, or Shepardizing cases can be helpful in locating additional cases.

A topic and key number digest search can be performed on Westlaw.  Lexis has a feature called “More Like This Headnote” that works similarly.  Both Lexis and Westlaw have full text databases of state case law.  In full text searching online the researcher must formulate a search request that anticipates terms that are used in the opinions as opposed to using the controlled vocabulary of an index.  In both formats, knowledge of terminology is critical to effective use.

The research objective for a state law problem is to find and understand the holdings of all relevant statutes and cases that constitute mandatory authority in that state.  Relevancy should be defined here in a very broad sense.  Cases may not exist that track the specific fact pattern and it may be necessary to analogize from other types of cases.  Cases that are not in favor of the position you are trying to advocate cannot be ignored and one must deal with them in some fashion.  While there are instances in which the numbers of cases on a particular issue in a particular state are overwhelming and different strategies must be applied, generally that is not the case.  The best way to ensure that one finds all the relevant cases is to use a variety of research sources and methods.  Print and online formats complement each other and often one finds cases by one method or in one source that are not found using another method or source.

Even if the law of a particular state appears to be clear, taking the time to understand trends in other states may be very important.  The law in a state may be clear, but may be contrary to what is happening elsewhere.  That could mean that existing decisions are ripe for being overruled.  Law review articles and A.L.R. annotations can be helpful in understanding the overall picture and identifying nationwide trends.  While relevancy may be defined broadly when researching your own state's decisions, you may want to define relevancy on a narrower basis when looking at persuasive authority to make that search a manageable one.

Making sure cases are still good law

Prior to citing cases in a written document or oral argument, it is essential that each one is verified to make sure that it has not been reversed on appeal or overruled by a later court.  Shepard's (Lexis) and KeyCite (Westlaw) are the tools for accomplishing this task.  BCite (Bloomberg Law) can also be used as an updating tool. However, note that the BCite signals apply to the entire case and signals are not assigned to particular issues in a case, so it’s important to read citing cases carefully to see if the issues you are researching are affected.

Refining analysis and formulating conclusion

Knowing when to stop researching can be difficult.  It is tempting to believe that more time will unearth the perfect case that will make the entire problem clear.  Unfortunately, many legal problems do not have as perfect an answer as one would like.  Balancing the need to do a reasonable, comprehensive research job with time and resource constraints is not always easy.  Following the steps outlined above ensures that the researcher has done a complete and reasonable job.  At some point, you must stop and draw conclusions from the authority that has been found.

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