Legal research is of great importance for individual lawyers and law firms and requires excellent research skills along with a limitless dedication to find relevant past decisions from case law.
Lawyers usually remain busy handling legal work for and fulfilling their clients’ requirements. Although the overall workload may vary from time to time, legal research work is something that keeps them extremely busy looking for more and more information from case studies & on new laws related to a pending court case in which they require help.
Legal research is of great importance for individual lawyers and law firms and requires excellent research skills along with a limitless dedication to find relevant past decisions from case law. As attorneys and law firms have many other legal proceedings to manage, they hire paralegals for the required support.
However, for all legal professionals, research work is a way to learn more, and at times, a tiring and time-consuming responsibility. So, let’s get further into what legal experts tell us about their best practices for going about legal research.
Limiting Search to Relevant Cases
Louis Russo, Founder of Russo Law LLC
Many lawyers are often so focused on finding the answer to a question in caselaw that they sometimes neglect to understand the outcome of the case in which the legal principle is discussed.
Modern research tools (thankfully) allow you to jump directly to relevant search terms in a case so you can quickly assess whether the point of law answers your question or supports your position. That, however, is only half the battle. You must next go back and read the entire decision to understand the facts. Why? If the facts of that case are distinguishable from your own, then the case citing to it might not be persuasive. Moreover, a case may have a finding about another issue that you might not notice because you simply click to see the next highlighted search term. As a result, I always limit the results of my initial broad search to only show the cases that have the holding that I am looking to obtain for my clients in litigation (having a motion to dismiss or summary judgment granted or denied, for example). If you don’t do this, your clever adversary will point to this case at oral argument as evidence that you agree with his or her position. Don’t fall into that trap! Whenever possible, only cite to cases that have the holding you are looking to obtain.
Considering public policy and general rules of evidence to find practical solutions
Zachary D. Schorr, Real Estate Attorney at Schorr Law
Legal research is one of the most important things a lawyer can do. Many cases are lost or won based on the quality of legal research. Generally, it is good practice to begin with a broad review of the topic by focusing on secondary authorities or legal treatises (encyclopedia-type information) for a general understanding of the topic matter. Once the attorney has a general understanding of the topic, they can then drill down on the minutia and try to determine what research will best support their position.
At Schorr Law, our firm focuses on finding practical solutions. In order to do that, and to find obscure legal research, we think of the policy behind most laws. Once we think about public policy and general rules of evidence, we can then try to predict what the law will be based on our experience and understanding of the policies underpinning the law. Then we go find the law. Legal research is a bit like a scientific experiment where you create a hypothesis and then try to prove or disprove it. Creating the hypothesis is a key first step because it frames the research and allows you to find the best research to support your position. More often than not, we can actually predict what the legal research will be by taking this approach.
In terms of software, there are many competing paid legal research databases. While many of the research databases overlap, the big competitors have different secondary materials – the general information – that can be useful. We suggest that when picking from one of the competing legal research companies that you focus on the secondary authorities that the legal researchers will want to have access to and let their virtual library of materials dictate your choice.
Making efficient use of legal research tools
Colin Edge, Associate Attorney, Demeo LLP
As an associate attorney and a former federal law clerk, I have spent a significant amount of time conducting legal research. In my opinion, one of the most overlooked components of legal research is ensuring that the cases you cite are good law. While clerking, I quickly realized that attorneys who routinely cited cases with negative treatment not only undermined their arguments, but they also lost their credibility with the court.
Now, as a practicing attorney, I always check the status of any case that I am citing, and I even review the statuses of cases an opinion cites in support of its holding. Most legal research platforms alert a researcher when a case has experienced a form of negative treatment, such as being overruled or distinguished by another case. I find Westlaw’s KeyCite tool to be particularly helpful because it clearly identifies the source of negative treatment and indicates if there are particular headnotes or legal issues that are implicated. KeyCite also informs you when a case has a pending appeal, which is a feature that I have not noticed on other research platforms. Although this process requires additional time, it is an essential step in any legal research project.
Reading all search results to frame a useful research
Steven Dorfman, Managing Attorney at The Perecman Firm
Lawyers trained 20 years ago or more were accustomed to relying on dusty and heavy volumes of books. Fortunately, that’s no longer the convention. We are now blessed with the advance of technology and have access to any number of online mediums to conduct the legal research that is essential to our profession. The two most popular providers of online legal research are Westlaw and Lexis Nexis. Both services offer access (for a subscription) to statutes, cases, law journals, law reviews, and other materials essential to conducting thorough legal research. Most attorneys are trained to use both services while in law school. However, through experience, it’s not unusual that a given attorney develops a preference for one service over the other. For instance, in my experience, I’ve found that West’s service is more effective because it offers more titles that are useful to my particular area of practice, and its platform is more user-friendly, in my opinion.
Once you’ve determined your preferred means of conducting research, it is essential to remind yourself that legal research is ALWAYS a multi-layered process. Typically, the exercise begins with a research string in one of the online sites. For example, “Can a President be charged with a crime?” What follows inevitably will be a lengthy list of search results consisting of cases, statutes, and other source materials (such as law reviews, practice journals, etc.). It is not enough to read the first case at the top of the list and be satisfied. On the contrary, it often takes reading many of the cases spawned from the original search result to find exactly what you’re looking for. Fortunately, the services provide an easy way of searching within a search string and the cases resulting therefrom. Once you find the case that you feel is on point and ideal to your circumstances, it is then essential that you confirm that the case is still valid authority for the principle you’ve been researching and hasn’t been overturned, questioned, challenged, and so forth. Those of us that have been practicing for more than 20 years refer to this exercise as “shepardizing,” which refers to the actual act of consulting a bound set of very large and heavy books called “shepard’s.” You can now do that with the click of a link within either one of these legal research services.
Given the ever-changing and growing nature of “the law,” it is important that the researcher exhaust every effort to confirm that the results of your research are correct and current. Fortunately, the online services available to counsel allow us to research in an incredibly thorough way without having to reference several cumbersome books. I personally love this aspect of our profession, as it allows me to sleuth my way through varied sources and allows me to often read some well written and reasoned legal opinions.
Come back tomorrow for part two and more expert legal research tips!