Essentials of a Legal Research
The process for legal research varies from jurisdiction to jurisdiction. The first step is to learn the rules and procedures for your particular jurisdiction. Wikipedia has a good overview of the process, as well as some links to legal research resources specific to various states – including Nevada. However, while the process varies state to state, there are some commonalities in what is typically covered when learning legal research. This overview provides outlines for the general principles behind legal research. Simply stated, legal research is the "process of identifying and retrieving information necessary to support legal decision making." It is used both by individuals and professionals to assist with various types of legal issues and disputes from business to personal matters to employment and family law issues. Legal research is one of the foundation blocks for the practice of law. From the beginning of law school – and then throughout a legal career – learning how to research the law is an important skill for attorneys to possess. Not only for formal "law practice", attorneys utilize legal research in their everyday lives, as part of the legal system and even helping friends and family. Legal research is broken into the "four sources" of law – cases, statutes, regulations and constitutions. A "legal authority" is a source in which you can find published interpretations of statutes and regulations, or descriptions of constitutional provisions in case law . . . . The content of those publications are legal authority; the sources of legal authority are cases, statutes, regulations, and constitutions. A legal authority is authoritative if it is a source of law that the courts, administrative agencies, executive agencies, or legislatures must follow. Case law is essentially law established by previous rulings on a case. Even when a case is resolved at a different level of the judicial system, the facts and the decisions in that case can affect the outcome of a similar case at a different level, unless the case is overturned, which would set a new precedent. Statutes are the laws that are passed by legislatures. These too can be interpreted by the judicial system in the form of court decisions. Regulations are the laws passed by administrative agencies within the government, such as the Department of Health and Human Services. These too can be interpreted by the judicial system. Constitutions are the U.S. Constitution, as well as the provisions of state constitutions. In some instances, there can be similarities between a state constitution and a statute. Legal research is a critical component to the accuracy of findings within a legal document, just as it is important to the outcome of a case. Although the rules for legal research vary from jurisdiction to jurisdiction, there are also general guidelines which apply.
Parts of a Legal Research Sample
The components of a legal research sample.
When you research the law you are looking for a specific answer to a specific legal question. To research an answer to a legal question typically involves finding information and resources from a specific collection of legal materials:
Statute law
These are the written laws of a jurisdiction. Statutes also include municipality by-laws, which are subordinate to state statutes, and finally municipal acts or local laws, which are subordinate to the state and municipal statutes by-laws respectively. A pronouncement by a state legislature of a general or specific law actually written down on paper, or as recorded by legislative intent. A law enacted by legislative body as being effective on a stated date, without the requirement for further legislative action (i.e., a companion "implementing" bill is unnecessary).
Case law
A published or unpublished opinion by a judicial forum. Many times, states will publish case law in a set of books or online database. The term refers to any reported opinion in any of the various citation collections, such as federal district courts as evidenced by the F.Supp. and F.Supp.2d reports, or the legal opinions of any United States appellate court as evidenced by the F.2d and F.3d reports.
Regulations
A regulation is legal rule passed by a governmental administrative agency on behalf of the state or federal legislature. The differences between statutes and regulations include the following: (1) a regulation is subordinate to a statute, that is, a law must exist that empowers the agency to promulgate regulations of the type that would govern the policy area; (2) the process by which a regulation comes to exist is much more informal; and (3) generally, regulations are not intended to state a specific right of private individuals.
Secondary sources
A source such as a treatise or dictionary that explains law. Typically, legal commentators, such as legal scholars, or practitioners, have authored secondary sources. In addition, secondary sources are those types of publications that comment on, analyze or criticize the laws, judicial opinions and administrative rulings so as to promote the future application of these laws, judicial opinions and administrative rulings.
Methods of Legal Research
Technology has transformed the way we conduct legal research and so has the advent of new mass text-analysis techniques. But while changes in the legal research landscape may still seem exciting or novel to many, the key pitches as to why to read this chapter have not changed: done well, legal research saves time and money for both the client and the lawyer; it can make the lawyer look good – and the client satisfied; it can persuade the court in your favor; and it can make sure that the judge knows what you want the judge to know. Mistakes or inaccuracies in legal research can be costly, embarrassing, or lead to loss of credibility with clients and judges. Every lawyer should be able to do effective legal research and a professional malpractice suit is often predicated on lawyers not doing effective legal research.
Lawyers try to do legal research by asking – could I find this answer by researching? or by asking – can I find what I need in this legal research bank? Digital research tools provide answers to both questions. With digital research tools, the number of options available to research have exploded. However, the goal of any legal research project should always be to search as efficiently and thoroughly as possible. Here are some strategies for conducting effective legal research, organizing research findings, and knowing when to stop.
Legal Research Samples
Memos are generally the most basic format for presenting formal legal research samples. In a memo style, facts, issues, research, and conclusions are all typically addressed. Sometimes, depending on the audience, only one issue may be provided in the sample, or one issue may be presented to an audience that already knows the facts. Many times, as when the sample is supplied for a court filing, the facts are not given because, obviously, those are being provided to the court in the filing in any event.
Not all memos look the same. Nevertheless, most provide for a strict hierarchical structure, where each section is listed in order, and in most cases, points are provided to the conclusion of the memo.
An example of a memo may be found here:
Memorandum to: [Addressees] From: [Cite Authors if Multiple: CITE-1, CITE-2] Re: RE: [Topic of Memo] Date: [Date Memo is Issued]
As with memos, many samples provided for briefs would still not be suitable as-is for court filings. Briefs can be prepared on a variety of issues, and they can be structured in a great number of ways. Usually, briefs are made up of a table of contents and an introduction, followed by relevant case law, and a conclusion. Some briefs may also provide a witness statement or two, and some may be attached to other items, as part of a deposition summary or other such item.
An example of a brief may be found here:
Brief
Reports are basic articles that provide a more narrative approach than memos or briefs. As such, we generally provide a simple report that also includes sources for further research, where you can go if you would like more information on this topic.
An example of a report may be found here:
Report
Common Law Research Challenges
When tasked with finding a legal precedent that’s been buried under years of old case law or having to prove a point that isn’t covered in a singular case, the process of legal research can prove to be a true test of a lawyer’s patience and perseverance. Not to mention the fact that it can seem to take an unpredictable—and often inconvenient—amount of time to complete.
Lawyers have been at this for years, and they’ve developed some tried-and-true ways to combat the many challenges that legal research poses. There are a number of common pitfalls that come with researching cases, and while the solutions may vary depending on the individual case, common situations and challenges do arise in each legal research effort.
The first problem is time: regardless of how much research you have to produce and show for a given case, you’re generally expected to get results within hours if not minutes. If you find yourself pressed for time while trying to find legal precedent, Grant Smith of Harris County Law Library recommends a few specific steps, such as focusing first on the more complicated aspects of your case, narrowing down the topic as closely as you can, and allowing the search engine to exclude the terms you’ve already chosen to narrow that search (such as using "AND" and "NOT" instead of "OR") .
Information overload, which occurs when you find too many overlapping articles and cases, has an obvious solution: just keep narrowing your search until you hit gold. A search for "ADA" that pulls 196 statewide decisions is going to leave you struggling to find one that fits your needs. But a search for "ADA" and "California" that pulls only six results is more manageable—even if it’s a little more time consuming to get there.
Another area in which legal research can be tricky is the status of the case law: although most lawyers and judges use Westlaw or LexisNexis to find their most current case law, both databases can occasionally miss won, unpublished decisions that could help you in the current case. The best way to fix this issue is to focus on the nuances of a case instead of the case itself. (For instance, research cases on punitive damages rather than looking for a case with that in its name).
Legal research doesn’t have to be a headache: once you’re aware of the specific issues that you could face while lawyering, you can plan around those issues to get the best possible results.
Tools for Legal Research
As the internet has become the dominant source for research on the web, so too has it become the major resource for legal research. With many members of the legal profession relying on that for their legal research needs, it raises a thought as to what our predecessors relied upon. Law libraries and law librarians are among the oldest sources for legal research that prove to be just as effective today. How do law libraries play into today’s legal research then? Well let’s take a closer look at what law libraries have to offer.
When most people think of law libraries, they think of dusty old buildings with floor upon floor of books in some far corner of the world away from access of the common folk. While that may be true for some private law libraries, in some places, such as the U.S. District Court for the Northern District of Illinois, that is nowhere near close to reality. The library is located on the 20th floor of the United States Courthouse in Chicago, Illinois (our old naming convention was a little off and it was not named the Jonas E. Ohrburg United States Courthouse after a retired judge). The location is perfect, as it sits high above the congested traffic of Chicago’s Loop and can be easily seen from the plaza.
Upon entering the library, you are greeted by smiling librarians ready to serve you and help you with what you need. One such librarian is known for quoting classic movies to you. This particular librarian has a way with helping you find the right source whether it be a statute or court rule. On the left side is the public computer terminal area where you can quietly do some legal research or type up your motions, research some cases, or access your email. To the right side, is the more quite area with the librarian desks, which does have a second computer terminal, but the desks have desk phones and the librarians typically are working at their desk, which makes it difficult to use the computers with having to listen to them field phone calls.
At the back wall, there is a conference room with tables that can hold up to 24 people (the library has "wheeled chairs" that allow those claiming their stake at a table to easily move around the room in order to attend various different dollar bill meetings inviting and respectfully turning down others). Behind the conference room and to the right is the "quiet" area of the library, where you will find the study carrels. For those that tend to be a little noisy, you not only have a desk and chair, but you also have a partition for those working around you. The other rooms located beyond the study carrels presumably are staff offices.
Now that we have a quick background on the law library, let’s talk about the resources available for your legal research. First, the district court library offers various databases available through their system. Specifically, that includes the following:
LexisNexis, Westlaw, Bloomberg Law, Fastcase, Casetext, Google Scholar, ALM, Internet Archive Wayback Machine, Public Access to Court Electronic Records (PACER), RECAP, United States Sentencing Commission, Google, Westlaw Edge Edit Cases, Westlaw Edge Quick Check, CaseText Co-Counsel, HeinOnline, OCLC, Public Library of Law (PALL), Justia, OpenLaw, Google Pubmed, Squared (formerly St. Louis Fed.)
If you are an attorney, governmental agency or representative of a governmental agency, you are allowed access to those databases from the comforts of your office. If you are a student, there are certain rules that you have to follow where you have to sign up for an account with the reference desk and have a librarian sign off on your login. Once signed in, which does not take much time, you are free to use the databases for your legal research needs.
As you can see, what the law library offers are just as effective then as it is now. Another benefit of law libraries is that it assists especially for the younger generations of lawyers in learning how to effectively navigate resources such as LexisNexis, Westlaw and Bloomberg Law, among others. As a young lawyer, I relied on the law librarians and the law library as a tool to successfully find my way through legal research. There are however some limitations to the law librarians. They cannot give you legal advice or give you objective opinions. What they essentially do is take you through the judicial history of a case and exit out of your research without giving you a particular result. It is important to note though that if you do discover something that you find interesting, you should request to update your results against Google Scholar or PACER, among others.
Using a combination of these resources, whether in person, through a database or in a library, will give you a different way to think about your research. It can be difficult at first, but in time you will learn to navigate through various online resources and learn the shortcuts that will minimize your time spent conducting legal research. So the next time you are in need of assistance with your legal research, do not be afraid to stop in and see the good folks at the law library. They may know you need help with your legal research and rather you figuring it out on your own.
Ways to Enhance Legal Research Skills
There’s no shortcut for good legal research skills. You can read as many articles as you want, but you must practice legal research if you’re going to master it. That means you need to challenge yourself and others. It’s your job to stay ahead of the game, and the only way to do that is to constantly learn. That requires more than reading and writing.
Mastery also means you need to teach others. Whatever your level of experience, there are always things you can share. Staying ahead means setting examples.
You can also take advantage of continuing education. There are many sources that provide courses designed to challenge you. That’s an extension of the first point. If you’re going to learn , make sure you push yourself to new heights. It won’t succeed if you’re not willing to put in the work.
Finally, you can leverage technology to improve. Yes, there is a wealth of information and resources available online, so use them to your advantage. The best place to start is at the UDenver site we identified above. It provides links to a lot of other research resources. Think of it as a jumping off point for all the research you’ll do in the future.
Best of all, the site also keeps a research calendar. On those days when you’re stuck and can’t think, maybe you need to check that calendar. Even top researchers want a little mental break, so you need to take advantage of those breaks, but remember, even as you do so, you’re still learning.