If you’re a law student, you may be tearing your hair out on a legal research task in your summer job at this very moment. Below is a list of five tips pertaining to legal research to help you through it. This post is geared both toward students who have unfettered access to Lexis Advance, WestlawNext, or other paid platforms, and toward those who have limited access to such platforms.
- Confirm your understanding of the task. Chances are that when your supervising attorney gives you a research task, she hasn’t totally thought through it yet. This may lead to a misunderstanding of the task at hand. It’s critical that you confirm your understanding of the research task prior to beginning your research. That means either repeating the task orally–in your own words–or sending the supervising attorney an email confirming your understanding. This gives you the opportunity to hone your understanding of the project and gives the supervising attorney a chance to reflect on the task and make any necessary adjustments.
- Begin with the Forbidden. If your legal research & writing professor told you to stay away from Wikipedia entirely, she was–I cannot say this more emphatically–absolutely incorrect. I have given students research tasks that can be accomplished in a fraction of the time by using free tools such as Wikipedia strictly as a jumping off point. Let’s take Confrontation Clause research, for example. Here’s a little hypo: Your employer, a criminal defense attorney, explains that, at trial, the prosecution presented DNA evidence processed by an outside laboratory that was unavailable for cross-examination at trial. The client would like to appeal the conviction based upon the “confrontation right” mandated by the U.S. Constitution. Your job is to gather some background information for the supervising attorney, including the basic SCOTUS precedent. You don’t know anything about the “confrontation right,” so where do you start? A secondary source in WestlawNext? Maybe a legal encyclopedia? Not a bad idea. But the preliminary research on this task can be accomplished in 2-3 minutes by searching “confrontation right” in Google, and reviewing the first search result: Wikipedia. Now, it’s still true that one shouldn’t rely on Wikipedia for research; all information should be confirmed in a more reliable source. However, as a jumping off point in legal research, Wikipedia is a goldmine. In fact, the Confrontation Clause entry bundles most of the important precedent in footnotes, so you can use the site as a springboard to further research in a paid platform or in Google Scholar.
- Adhere to the Fifteen Minute Rule. If you research without keeping track of your time, you’re developing poor research habits that will eventually impact your clients when your research time becomes billable. Novice legal researchers often rely on one research technique and keep at it even though they’re hitting dead end after dead end. Remember the Fifteen Minute Rule. Here’s the Rule in action: You enter a Terms & Connectors (Boolean) search string and come up with no results pertinent to your legal issue. You spend some time rethinking your search string. Still nothing relevant. You try again. Nothing. After fifteen minutes of searching, STOP SEARCHING! Try a different finding tool altogether. Go to a secondary source, browse the Table of Contents. Search the Index. Do something drastically different, or you may find yourself down the rabbit hole, where minutes are hours.
- Good Notes are Insurance. Sometimes there is no authority on an issue. Sometimes the answer to a legal issue is adverse to your client’s case. In these situations, your supervising attorney may want you to explain your search process, especially if you haven’t established that your credibility yet. Save yourself the embarrassment of having to recall your process on the spot, or pausing to return to your office to print out and decipher your search history in Next or Advance. Take good notes while you research, either in a Word document or on a pad of paper. At a minimum, your notes should include the search terms you used, any finding tools you used (such as key numbers and headnotes), any secondary sources you consulted, any authority you reviewed that you were on the fence about, and all updates on the authority. Date your notes, so you know when you last updated the authority. You should feel confident enough in your notes that you could pass them along to the supervising attorney to review. Good note taking is an excellent credibility builder.
- Stop When All Roads Lead Home. Knowing when to stop researching is one of the most vexing issues for novice and expert researchers alike. Generally speaking, you want to stop researching when all roads lead home — that is, when your research keeps turning up the same authority again and again. But here’s the key: you have to confirm this using multiple search techniques. Don’t just review search results to confirm your familiarity with the listed authority. Try other techniques. For example, go back to a secondary source and review the authority cited. Or find a relevant Key Number of Headnote and review the authority cited. Or, if you’re researching case law, enter a key case in Google Scholar and click the “How Cited” tab. How Cited is Google’s version of Shepard’s/KeyCite. While it’s not as reliable at the paid citators, it’s great for confirming you’ve found the major cases on an issue.
One of my favorite Westlaw features is the ability to create a KeyCite Alert that sends email updates whenever a new case cites a specific case. This feature is extremely effective at helping practitioners update cases. I’m happy to report (at the risk of sounding like a shill for Google Scholar) that you can now accomplish the same thing — for free — with Google.
Choose a case. Let’s say you’d like to keep abreast of the latest cases mentioning Marbury v. Madison, 5 U.S. 137 (1803). Here are the five steps required to create an alert for this case:
STEP 1: Simply navigate to the case in Google Scholar.
STEP 2: Once you’ve pulled up the case, locate and click the “How cited” link in the upper-left horizontal menu. You’ve just navigated to Google’s equivalent to Shepard’s. (See my previous post about Shepardizing using Google Scholar’s How Cited feature.)
STEP 3: On the How Cited page, we’ll be focusing on the “Cited by” heading. After a selection of documents listed under “Cited by” click “all [n] citing documents >>”. In the case of Marbury, the link reads “all 22,570 citing documents” (at this writing).
STEP 4: You’ve just navigated to a page listing all database documents citing to the document you’d like to track. On the upper-right-hand of your screen, click the button with the email logo next to “My Citations”.
STEP 5: Enter your email information and select the number of results you’d like to receive. Press “Create Alert and … Voila! You’re one step closer to staying abreast of recent treatment of a particular case.
Now for the disclaimers: Remember that Google Scholar has its limitations. Keep in mind that there may be some delay between the date of opinion issuance and database integration. Also, be aware that Google Scholar may not index every decision issued. You’re always at the mercy of Google’s bots and algorithms. And, of course, this post should not, under any circumstances, be considered legal advice and is not a substitute for complete updating of cases.