Research Guides

TMLL Research Guide - Chapter 1


THE LEGAL RESEARCH PROCESS


Legal research is not a linear process. The following represent steps that are typically taken when doing legal research. The order in which the steps are taken may vary depending on information that is known at the outset of the project, on information that is discovered during the research process, and on the scope of the project.

Analyze the facts and formulate a preliminary statement of issues.

This is a continuous process. Be prepared to reframe the issue(s) as your research progresses.

Create a Research Plan

This plan may change or evolve as you work, but it can still provide guidance and a checklist for complete research. List the tools you intend to use and the initial search terms you will use. Be prepared to add new terms or searches to the list as you learn more about your issue.

Conduct background research to get an overview of the subject area, identify issues and terms, and get clues to primary sources.

Your research plan should begin with building on what you already know about the problem. Begin with background reading in secondary sources if you are unfamiliar with the subject. Determine the appropriate jurisdiction for your legal issue, and determine whether state or federal law applies. Learn the types of authority involved, i.e. whether the issues are governed by case law, statutory law, administrative law or a combination. Identify any “terms of art” specific to this area of law, and read secondary sources to find additional search terms. Secondary sources will often cite directly to governing statutes and regulations and cite to key case law, which will be useful starting points for searching for primary law.

Search for primary law.

Using a variety of tools will ensure comprehensive research and compensate for difficulties that one may encounter in using particular sources. For the most efficient primary law research, use citations found in secondary sources to guide you directly to relevant primary law. For statutes and regulations, use annotated codes or Shepards/KeyCite to find cases that cite the statute or regulation. In cases a) obtain citations to additional relevant cases cited in the opinion; b) look at case headnotes to find topics and key numbers to find additional cases on the issue; c) BCite, Shepardize or KeyCite cases to obtain citations to additional authorities; and d) read the case to discover possible additional search terms. Always look for pocket parts and other supplements when using print sources. Note the dates of coverage in all sources consulted.

Read and evaluate all materials as you proceed with your research.

Do not skim secondary sources simply to find pointers to primary law. Instead, read carefully to fully understand the issue. In many cases, secondary sources will fully answer your legal research issue, and you will need to search for primary authority only to make sure that the information learned in your secondary source research is correct and that the cited legal authorities are still good law.

Never overlook the importance of reading cases and other primary authority. Do not substitute reading of the headnotes, synopses or interpretations in secondary sources for your own thoughtful reading of the authorities you find. Look for holdings of cases, not just broad statements of the law.

Make sure cases are still good law and you have the current version of statutes.

Once you have determined that a case is relevant and/or important, use citation tools to verify that the case remains good law for your legal issue.. Make sure you have checked all available supplements if using print sources. Look up statutes in electronic form to check for recent amendments.

Refine analysis and formulate conclusion.

Do not be frustrated if you return to tools already consulted earlier in the research process. You may have discovered new relevant terms as you gained a fuller understanding of the research issues. Returning to secondary sources near the end of a research project can be helpful. These sources can be easier to understand after you have read some of the primary authorities.

When should you stop?

- When you have completed the steps in the model;

- When you have used a variety of appropriate sources;

- When you are finding the same authorities over and over again;

- When cost exceeds benefit, i.e. you run out of time.

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