What You Need to Know About Legal Research
Legal research is a term that often sounds intimidating. However, legal research is really not much more than a method of looking for information. Understanding the "W-5" of legal research is helpful in demystifying this necessary part of lawyering. The "Four Levels" of legal research and how they are used is also a helpful tool in helping to understand how legal research works.
The "W-5" of Legal Research
- The "Who" of Legal Research:
- The "What" of Legal Research:
- The "When" of Legal Research:
- The "Where" of Legal Research:
- The "How" of Legal Research:
The "Four Levels" of legal research methods follows the "W-5" to provide a broader view of how legal research is done.
- The "Where" of Legal Research:
- The "What" of Legal Research:
- The "How" of Legal Research:
- The "Why" of Legal Research:
Legal research is a critical step for every legal representation. A lawyer’s duty of competence requires a threshold level of research. This level includes basic statutory and case law research , some sort of legal citation checking (if there are not KeyCites or Shepards available), and basic factual investigation. This handles the "what" of legal research. The next level of legal research is client-specific and is sometimes experimental. Often this level includes some level of original empirical work. It is here that the lawyer needs to go outside their original knowledge and expertise and explore the dark corners of the law for the client’s benefit.
How to Use Resources When Performing Legal Research
The advancement of technology has given rise to a multitude of tools that make legal research easier, faster, and more efficient. The legal industry is notorious for being ultra-conservative with technology, but it is now embracing emerging technologies—such as natural language processing (NLP), artificial intelligence (AI), and visualization tools—that help lawyers to draw quicker conclusions from their research.
Software and Products
The Lion’s Share of attorneys performing legal research are using The Big Three – Westlaw, LexisNexis and Bloomberg Law. These are great for finding cases, statutes, regulations, and commentary. Search by citation, case name, keyword, or topic.
Bloomberg Law is very user-friendly with integrated search boxes for various sets of data. Search tax, legal news, litigation activity, dockets, company registries, and SEC filings all as easily as entering a case citation.
Artificial Intelligence
Kira Systems uses machine learning to automatically identify, extract, and analyze relevant legal information from contracts and other documents. It is useful in contract review or due diligence processes.
Ross is a question-answering computer program that uses AI to answer legal questions. This software is integrated with legal research sites like Westlaw and deals primarily with case law. Users input a query, and the program delivers a summary, relevant case details and cited authority.
Online Research
Legal Research Sites
Google Scholar allows searches of U.S. Supreme Court opinions, U.S. Court of Appeals/Regional Court opinions, U.S. District Court opinions, U.S. Bankruptcy Court opinions, and U.S. Tax Court opinions. Furthermore, you can search for academic publications, articles, and journals.
Legal Information Institute is part of Cornell University Law School, and contains more than 1 million legal documents, along with basic background law. Law help Interactive contains pro bono language-based programs that walk people through preparation of court forms.
Libraries
The Federal Depository Library Program guarantees all Americans access to government led materials. Libraries are located in all 50 states and are conveniently placed near federal and state courthouses. Law libraries are the best way to find federal and state legal resources and government documents. The American Association of Law Libraries is the primary professional organization for law librarians.
Researching Within Law Databases
The vast majority of legal research today is conducted online. No longer is a short stack of Westlaw or LexisNexis books and a pocket Constitution sufficient supplies for a soldier on the battlefield of the law.
These days, it’s all about how well you can navigate your way through databases and legal search engines to find the information you need to help your client retrieve that missing sock or put that $50 bill on the table.
Your search strategies will differ based on whether you are searching for primary (case law, statutes, regulations) or secondary (treatises, journals, encyclopedias) sources. They will also differ based on whether you are conducting a general or a specific search. A general search is used when you are looking for anything related to a law topic, like patent infringement. A specific search is used when you are looking for something more specific, like patent infringement in a specific geographical area against a specific defendant.
You may not always know for sure which type of search to use until you see the results. Even experienced researchers are sometimes surprised by what turns up. As you become more familiar with your state statutes and codes and your state case law, you will also become accustomed to the results of your searches and learn to modify your searches to meet your needs.
Common Search Strategies
The general rule of thumb for both types of searches is to start with the broadest terms possible and then refine your search based on your findings. If you’re looking for a statute, like the statute of limitations on patent infringement claims, you may want to start just by looking through the "statutes" section of your legal database. In the case of a specific search, you might instead start by looking at the "federal" section of your legal database if you’re looking for federal patent infringement statutes.
As a rule, it’s not a good idea to type in a long string of words or a question. As one former law firm technology manager says it:
"When I first started using the Internet more than a decade ago, my searches were often very long and complicated. Now that I know some of the tricks, my queries aren’t so unwieldy. One big insight is that search engines not only allow you to enter simple queries with as few as one or two words, but they work better that way. The newer engines are also getting incredibly good at connecting related ideas with an intuitive sort of logic. For example, if you type in "pizza locations," the search will generally return places where you can get pizza delivered to your home. But if you try searching for "pizza locations" at Google, you’ll notice that it returns the interesting result of locating art and architecture that have some connection to pizza. In fact, all you really need to enter in most cases is the word pizza (or any other word), and the search engine does a lot of the work for you."
Search and Sort by Categories
Most legal databases organize results by category. Use these categories to help you find what you’re looking for. You can also search according to how the material will be used in your case, such as "petitions and motions," "pleadings," and "discovery." Use these categories to help narrow down your search terms.
Note that legal databases also search each component of a word separately. So searching for "latrines" will also result in "lat," "rat," and "ine." You may therefore need to think about specific words used in a document in order to return relevant results.
Evaluating Legal Resources
Analysis of legal materials is the next step in the legal research process. Once you have identified what materials are available and you know where to find them, you need to be able to analyze those materials and derive information from them. This is important because the analytical portion of research will help you determine how to construct your own legal arguments based on the research you have conducted.
Identifying Primary and Secondary Legal Materials
In order to be able to effectively understand the relevance of a primary legal resource, it is important that you are able to identify what is considered primary material. Primary legal materials are defined as those which have been established by the government or other reputable authority. A common example would be a law passed by the legislature or the U.S. Congress. Common forms of primary legal materials include case law, statutes, and administrative regulations. Secondary legal materials are those which are written interpretations and commentaries of legal rules and decisions. These provide an analysis of certain laws, in addition to other legal aspects. Examples are legal encyclopedia entries, legal periodicals, and treatises. Although secondary materials are usually not considered to be authoritative, they are often very helpful in legal research. These secondary resources help you locate the court-litigation documents which comprise other materials. After determining what primary legal materials are relevant to your search, you should then consider how you are going to interpret and analyze them. Depending on your education, particular area of study, and peer-reviewed scholarly articles, your interpretation might vary.
Legal Research Traps To Avoid
There are many pitfalls to look out for, and knowing what they are will help keep you from falling into them. One of the most common mistakes is trying to do "too much" research. What does this mean? It means getting caught up in case law when it only relates peripherally to your research. Understanding what you actually need before you research will help you avoid this one. Another common pitfall is ignoring the basics. Not every research project you do for a client needs to be a novel. Sometimes just giving the client the basic information is all that is necessary. Other times , they are going to need more. Keep an open line of communication with the client about how much research they are going to need.
Another common mistake is using bad keywords. There are apps and services who will help you come up with the terms that are most commonly used in legal research for the topic you are interested in. Not having a thorough understanding of the search tools you’re using will set you back. Understand the system you are using so you can use it well.
The Impact of Technology on Legal Research
The landscape of legal research has been irrevocably transformed with the technology of artificial intelligence (AI) and machine learning. While these tools have pervaded other industries for some time now, their application in the field of legal research is relatively new, and there are big winners and big losers. AI and machine learning have played a significant role in advancing legal research. AI allows lawyers to do their work more efficiently, to accurately predict court outcomes and any possible challenges while determining case strategies. AI technology is capable of forming intelligent, relevant, and effective search results, which means fewer irrelevant cases and less guessing, both things that cost the firm added billable hours. The abundance of online legal resources including tools such as case law, background information, and citation analysis is a huge advantage for legal researchers today. Because of these advancements, switching back and forth between multiple texts and resources is almost completely eliminated, which means it takes less time to conduct background and other legal research, and creates a better product with real-time data. However, the vast amount of information available online also means that inexperienced researchers may waste a lot of time looking up irrelevant or unnecessary resources. It also means that researchers may miss pertinent resources; with so much data, relevant cases are easily overlooked. A few advanced legal research technologies are: Artificial intelligence, when used appropriately, has the potential to really transform the way we practice law. AI in legal research helps researchers find documents quicker and lawyers save money by establishing effectiveness levels based on success rates in a certain area of law. AI technology doesn’t solve every problem, and its use in the legal research industry still faces many limitations and challenges such as cost and bias; however, its value is quickly becoming obvious. AI and machine learning may be considered the legal research tools of the future, allowing the lawyers of today to keep up with the nation’s growing volume of information.
Novice Legal Research Tips
For any new lawyer or law student grappling with how to get started with legal research, the best first step is to write down just what it is you are trying to find whether a particular rule is, whether a statute has an exception, or anything else. Then, break down that statement into the elements and turn each element into a question. For example, if you want to know if an action is barred under the statute of frauds, you might break down your question into the following:
1) Based on the state’s statute of frauds, what types of actions are barred?
2) What type of performance must be rendered for an offer to be binding?
Next, you can search one or two of the most relevant databases first which will include secondary sources like legal encyclopedias or treatises where you may have the law stated right there in the text. This strategy, called "reference point searching" is often helpful, as you are being guided by the knowledge of experts, rather than starting from nothing.
After reference point searching, you can use KeyCite or Shepard’s to analyze a case, but again, you should first read the case to figure out what you need to know then choose whether you want to specifically validate it or look through its citing references.
Your final step may be Westlaw or Lexis which both have user friendly search boxes so you can input specific keywords or phrases and quickly return results. These databases are also the best to use when looking for a specific section in a large compilation such as the Restatement of the Law or Uniform Commercial Code.
Ethics in Legal Research
Legal research is not solely a technical endeavor, even though those of us who are passionate about it might wish things were that simple. It has the potential to be a weapon ("weaponizing research") or a shield (defending clients’ interests). Without the right ethical considerations in place, legal research can cause significant harm to the clients you represent or to the system you are part of. I hope this will show you why ethical legal research is so vital to protecting yourself and your clients.
Professional Responsibility
Every jurisdiction has its own set of rules that govern their legal professionals within that jurisdiction. While a thorough review of the rules of professional responsibility or the class notes on your local Legal Research and Writing professor may assist you in ensuring you select good (non-biased) research, does that mean you can stop there? Of course not . Your research must conform to the prevailing case law and statutes in your jurisdiction in whatever legal document you write.
Integrity
Being an ethical legal researcher means more than just following your local rules of professional responsibilities. If your search lacks integrity, it can and will be used against you, your clients or your professional standing.
Responsibilities
Of course, your duties do not stop once you have a competent legal document for your client with all the bells and whistles of perfect research. No, you have the responsibility of showing where the legal document is going once it leaves the comfort of your office. You are ethically responsible to ensure that you have provided your client with all the possible avenues their legal situation could go down. If they sign the document and you move on without informing them of where the document will likely go next (if you don’t warn them, they don’t know to ask), you could find yourself in ethical and legal trouble.