Legal Research: A Primer
Legal research is the process by which lawyers, judges, and their clerks look for the law or facts – those things that the legal system will consider to be true – to apply to situations for which legal guidance is needed. That guidance can guide decisions, making it less likely that we’d make a mistake that could prove costly. Legal research is what makes the law work. Think about how the law functions at its most basic level: you follow the rules, the rules that are enshrined in statutes or cases, to get the outcomes that you want.
Legal research is most necessary when you are given a situation in which the law is unclear. In those moments, you need to understand the law and the policy goals behind it in order to get from Point A to Point B. Let’s take an example: you’ve received a speeding ticket, and the officer gave you a choice of whether to pay a fine or fight the ticket in court . You choose to fight it in court, but the law is unclear on whether you chose to violate the statutory definition of "speed" when it’s raining at night and people have varying definitions of what "damaging" another vehicle might be. Your case will go to trial, and the judge will consider the statutory language and the case law that have studied lost of examples of what damages other drivers have suffered. The judge may even apply some notion of "community expectations" to determine whether or not you’ve suffered a loss.
The point of this example isn’t the need to fight your ticket, but to highlight the importance of legal research: the law has some uncertainty, and until someone goes to court and asks a judge that wants to answer, "no matter your situation, what tells us that you’ve done something wrong," those situations will be litigated ad infinitum, begging for resolution.
At its most basic, that is legal research: the problem that presents itself, requiring some answer that recognizes the law as written, the policy behind the law, and the community expectations at play.
Useful Resources in Legal Research
At the heart of legal research is the use of primary and secondary sources. Primary sources are the law itself while secondary sources help us understand and interpret the law. We need to use both in order to understand the law as a whole. Primary sources for legal research include: Statutes Enacted by legislatures, statutes are laws or codes passed by the legislature. The Constitution grants Congress the power to enact laws that establish certain types of offenses. These laws define what constitutes a crime and the range of penalties to be imposed for each offense. States also have the power to enact statutes and to establish their own set of laws, many of which are similar to those at the federal level but vary from state to state.
Although statutes are law passed by the legislature, they are not always straightforward. That’s where secondary sources like commentary and analysis are helpful.
Case Law Comprising of court opinions, case law is another primary source for legal research. Appellate cases are the most common type of opinion. They are opinions issued by appellate courts that have affirmed or reversed a trial court decision, or even stated that no error was found.
Cases are used as an example of the law. They are cited within other cases, statutes, and even administrative rules to make a point or refer back to a previous judgment. A case may be used to show where or how the law was utilized in a previous decision. In recent years, more cases have been published online as part of the advent of open access to case law.
Case law is particularly important in criminal cases where the scope of the law has expanded. Two landmark cases, Miranda v. Arizona and Gideon v. Wainwright, have impacted the judicial system in ways that ensure those charged with a crime will have protected rights.
Regulations Another primary source for legal research is regulations. One of the most commonly cited regulations is the Administrative Procedure Act (APA). Passed in 1946, it governs the policies and procedures of federal agencies.
The purpose of the APA is to ensure public participation in the rule-making process, to prohibit ex parte communications and to require the publication of final rules in the Federal Register.
There are many other regulations, often referred to as "subordinate legislation." Each state has $10 state statutes and regulations that deal with state laws. Comprising of state and federal resources, research and case law search engines carry and house these regulations.
Approaches in Legal Research
Selecting the Right Keywords
The heart of any legal research inquiry is the selection of appropriate keywords. The best keywords will be words or phrases that both describe the topic you are researching and that are within the vocabulary of the source where you plan to conduct your research.
For example, if you were preparing to draft a complaint for breach of contract on behalf of a client who failed to pay a bookkeeper, the legal issue at the heart of that transaction would be whether there was a contract. Accordingly, your goal would be to select keywords that could look at the legality of the contract itself. In doing this, you might select the word enforceability, as well as variations thereof, such as enforceable or unenforceable. You would then enter that keyword into the database you are using to conduct your legal research in such a way as to better target the most current case law relating to the enforceability of contracts, given the facts of the matter you are looking at.
If you did not know the legal terminology, you could research the language used in various contracts by conducting a search for the word contract, as well as searching various forms dictionaries or jurisdiction codes to learn the correct vocabulary words to use. After you have selected the most relevant keywords to the issue you are researching, you may be able to begin searching through the databases for answers to your questions.
Boolean Operators
Sometimes, a more complex legal research inquiry will require you to use Boolean operators to expand or narrow your search further.
To put it simply, Boolean operators (think of them as the logic stemming from a man named George Boole who created a system of logic in the 1800s) are terms that allow you to refine your search depending upon various aspects of your legal research inquiry. For instance, if your client wants to settle a case in which a claim was fraudulently asserted, you may be looking to find cases where people falsely represented themselves to extinguish liability. In doing so, you might be looking for cases where false representation occurred in order to remove the liability. Your basic search for those two keywords would be false representation. However, there might be other keywords you can use to get a more precise result. In that case, you might want to conduct a search for’ "fraud" and "liability" with the quotations emphasizing exactness as to each of the terms in the sentence.
You may also employ operators called "OR" and "NOT". When you add "OR" to your Boolean operators, you emphasize that you are curious about any of the words or terms you’ve included in the query. To express this in a legal query, you might for example, use "OR" to search for both fraud and deception as to the circumstances.
On the other hand, you might also follow your Boolean operator with a "NOT" to indicate that you do not wish to see results that pertain to a specific topic.
Of course, Boolean searches can become complicated quite quickly, which is why advanced legal research skills come in handy. You can read more about advanced legal research in our next post here.
Nifty Tools In Legal Research
The most commonly used legal research tools and databases include Westlaw, Westlaw Edge, Lexis, Lexis+ (formerly known as Lexis Advance), Bloomberg Law, Fastcase and Google Scholar. All of these tools are extremely powerful research tools, each with their spin on content, pricing and pricing models.
Westlaw allows users to search across the entire platform, including SEC filings, court dockets, statutes, regulations, briefs, motions, pleadings, jury verdicts and other administrative codes and agency materials. Its primary strength lies with being able to run advanced searches across all areas of law. It can even analyze contract language and terminology to determine efficiencies across particular types of matters. The newest bells and whistles include the ability to search documents with some review set technology, as well as single click actions for redlining or marking up transcripts.
Lexis has a vast database of lawyers, law firms, politicians and law school data, as well as access to many publishers. It offers a task specific approach to legal research and is based on a practice area model through its more sophisticated Lexis+ platform. Recent enhancements include the ability to create your own news feed based on your preferences in addition to some data visualization capabilities.
Bloomberg Law offers a very intuitive interface that highlights highlights the user’s focus areas and recently accessed information. Bloomberg combines its platform with a comprehensive news feed and business intelligence data. It’s connected to Bloomberg Analytics and Bloomberg News. Unlike a traditional legal research platform, it uses a combination of natural language queries, as digging into the content to conduct boolean searches . It markets itself as the only fully integrated suite designed for legal professionals, but I also find it frustrating to navigate (but less so now).
Westlaw and Lexis are viewed as the best in the business. However, they are also the most expensive. While Westlaw offers a flat fee annual subscription, it can become cost prohibitive if you perform a lot of one off matters over the course of the year. Lexis allows you to pay per matter, or via a subscription based on annual dollar amounts. To offset costs, what many lawyers and firms use them for, is a high level initial search. Then they perform manual research for less complicated matters.
Google Scholar is a free legal research tool generally available to the public and includes access to federal courts, Circuit Courts, U.S. Supreme Court and U.S. tax court cases. The downside is that it does not include all of the federal courts or bankruptcy cases; it is not a comprehensive database and does not include the entire universe of free available judicial cases. It also tends to link you to out dated state court opinions. As a general matter, it is very limited and lacks substantial depth. It is best for finding supporting law for an issue already identified.
The legal research experience can be overwhelming for many lawyers, particularly those who are switching platforms or who are newer to practicing in this space. Thankfully, there are free options out there to find what you need. And, likewise, the time invested in learning your exceptionally powerful research tool will offer dividends in terms of expediency later on.
Setbacks in Legal Research
As much as legal research is a fundamental part of most legal work, it does also come with its own unique challenges that all practitioners are aware of. The most obvious, and likely biggest, challenge can be the sheer amount of information you may have to sift through. Even if you know what you are looking for, you may have a hard time finding it amid the sheer amount of information available. Whether it is good or bad information is another question altogether. This leads to the next problem: accuracy. For all of the accessibility and convenience the internet offers, it heightens the risk of inaccurate information being able to spread, sometimes without anyone noticing.
Additionally, procedures, statutes, regulations, and other laws are constantly changing. Staying updated with that is another challenge that goes beyond the basic information overload. You have to be able to cut through the constantly updating information to find the information you are looking for and/or more importantly, that needs to be taken into account.
Practical Tips for Novices
When starting research for the very first time it is important to keep you research organized. Start with a clear and concise legal research plan and consult your legal research workbook . Also be aware that research can take time and practice, but do not be afraid to ask more senior research lawyers for help! It is important that you do not use terms of art that are unknown to the reader and to choose a search method that works best for you. It is also important to remember that more research does not automatically equal a better or more accurate outcome.
