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.
There’s a new free legal research tool in town: Casetext. Currently in the beta stage, Casetext allows users to search a directory of “over one million federal and Delaware cases” using keywords or retrieve a case by citation. Most notable, however, is Casetext’s annotation feature, which allows users to provide comments and analysis. Here are the type of annotations users can provide:
- Use expertise in an area of law to add analysis of a document or of a paragraph within a document.
- Add a link to an article you wrote or another related resource.
- Help organize documents (by adding tags) or related cases (by categorizing them).
- Upvote useful related resources.
I like the editable “Quick Facts” feature at the beginning of cases. And I’m particularly interested in the crowdsourced citator function, which allows users to participate in ordering related authorities based on usefulness. However, the pagination of cases is not reader-friendly yet, and until Casetext starts indexing more cases, you can only go so far when clicking internal citations.
Below a list of the cases indexed:
- all U.S. Supreme Court cases,
- federal circuit court cases from Volume 1 of F.2d,
- federal district court cases published in F.Supp. and F.Supp.2d from 1980, and
- Delaware cases published in A., A.2d, and A.3d from Volume 30 of A.
While the system isn’t lightning fast yet, Casetext has some brains behind the project (former editors of the Stanford Law Review and Harvard Law Review), and I’m interested to see where it goes. Here is an introductory tutorial by the founders:
In 2013 so far, federal judges have looked to Wikipedia for assistance in defining terms or establishing facts in thirty-one (31) cases, either in footnotes or in the body of the opinions. Of these, the District of New Mexico has cited to Wikipedia the most, referring to the crowdsourcing website in five (5) separate opinions.
The majority of cases citing to Wikipedia use the source for definitional assistance. For example, the Seventh Circuit recently used the Wikipedia definition of the term “telephone directory.” Navarro v. Neal, 716 F.3d 425 FN1 (7th Cir. 2013). However, courts are increasingly looking to Wikipedia to supply background facts. For example, in one New Mexico case, the court used Wikipedia to establish the date a judge reached senior status. Martinez v. Martinez, 2013 WL 3270448 FN15 (D. New Mexico, June 3, 2013). In a Second Circuit case, the court reached to Wikipedia to establish the plot of “The Birdcage” film. Kelley-Brown v. Winfrey, 717 F.3d 295 (2nd Cir. 2013).
From Law Technology Today: “Google is known for constantly working to upgrade and improve its services – and Google Scholar is no exception. Often these improvements are introduced with little or no announcement or documentation. Some of these “improvements” are for the better and some are not.
The first change at Google Scholar that is NOT for the better is that it’s now harder to find because it’s no longer located on the “More” drop-down menu. Instead, to navigate to Google Scholar you’ll need to click the “More” tab and then “Even More” (see Illustration 1).”
The newest trend in legal research is the integration of free legal research tools into tried-and-true paid platforms such as Lexis and Westlaw. The most popular of these free tools is Google Scholar, which provides an excellent caselaw search mechanism.
The use of Google Scholar for legal research is exploding in law practice. In a 2010 survey, nearly half of responding attorneys indicated that they used free services such as Google Scholar rather than paying for commercial sources. The increased attention to this free resource is also reflected in the research curricula of legal writing departments nationwide. In a recent survey by the Legal Writing Institute, 59 out of 188 law schools surveyed are now incorporating Google Scholar into their legal research lessons. Besides Westlaw and Lexis, it was the second most popular research source taught behind WestlawNext.
What can I do with Google Scholar?
Currently, the best uses of Google Scholar are: (1) case retrieval (which is faster than Lexis and Westlaw); (2) finding related cases (similar to, but more limited than, Keycite and Shepard’s); (3) testing out keywords and terms/connectors for planning fee-based searches; and (4) locating a wide-array of secondary sources, including topics not traditionally reached by fee-based services (e.g., social science journals).
What can’t I do in Google Scholar?
Before exploring some of these capabilities, it’s important to mention some of Google Scholar’s limitations:
- Citators. While searching for related cases is relatively easy, Scholar has yet to integrate a true citator function similar to KeyCite or Shepard’s. As of this writing, the only way to truly be sure a case is still good law is to either hit the citator books or log onto a fee-based service. Thus, combining Google Scholar research with fee-based research is essential at this point.
- Search Results. Google’s algorithm (the formula Google uses to rank search results) remains somewhat of a mystery. Whereas fee-based services allow the user to manipulate the algorithm and rank results in a customized manner, Google’s process is opaque.
- Content Limitations. Users of Google Scholar must be aware of some significant content limitations. According to the Google Scholar FAQ, Google’s state directories are limited to U.S. state appellate and supreme court cases beginning in 1950. State materials before 1950 are patchy. On the federal level, Google only searches U.S. federal district, appellate, tax, and bankruptcy cases from 1923. Notably, U.S. Supreme Court decisions prior to 1791 are also absent (which is probably fine unless you need to reach farther back than Marbury v. Madison (1803)).
- Mysterious updating. According to Google’s FAQ, the search engine “normally add[s] new papers several times a week.” Updating existing cases can take several months, depending on the speed of Google’s crawling bots.
- Retrieval limitations. Once you’ve found materials you’d like to retrieve, the printing, downloading, and emailing options are quite limited.
Notwithstanding the foregoing limitations of Scholar, this engine, when combined with fee-based resources, is a cost-effective way of conducting legal research. Below is a list of tips for optimizing your search experience.
1. Setting Your Homepage to Automatically Search a Specific Jurisdiction.
To set your browser’s homepage to automatically search a specific directory, go to http://scholar.google.com and click “Advanced Scholar Search” next to the search box. Under “Collections,” click “Select specific courts to search.” This maximizes a comprehensive list of state and federal courts, including specialized federal courts such as the Court of Claims, Court of Customs and Patent Appeals, Court of International Trade, Customs Court, and the tax courts. Select the directory or directories you’d like to automatically search upon opening your browser. No need to enter additional information, unless you’d like to add keywords or date restrictions to the automatic search. Then, at the bottom of the page, click “Search Scholar.” This leads to a Google Scholar search page. Either bookmark the link or add the link to your browser’s home page preferences. From this page, your search will be automatically limited to the directory of your choice.
2. Finding a known case and creating an alert.
If you know a case by party name or citation in either the official or the unofficial reporter, retrieving the case using Google Scholar is far more cost-effective than retrieving and/or printing it using Lexis, Westlaw, or some other fee-based service. It’s also much faster– try .19 seconds. Once you search for a case name or citation, you can follow the case by creating an email alert for the case– the same function as Westlaw’s KeyCite Alerts. From the results page, click “Create Email Alert” on the upper menu bar and enter your email address. Every time a new case mentions the case you’re following, you will receive an email alert.
3. Searching for a case.
You will have the most control over your search if you limit your search to specific jurisdictions before entering any keywords into the search box. As mentioned above, to choose a specific directory to search, click “Advanced Scholar Search” next to the initial search box. Scroll down to “Legal opinions and journals.” Here, there are options to search all opinions or limit your search to specific jurisdictions. For even more options, click “Select specific courts to search,” which provides an extensive checklist of options. Once you have made your choice, this takes you back to the original search screen. Now you’re ready to compose your search string.
In Google-speak, search connectors are called “operators.” Below is a list of common Google operators from Google’s Advanced Scholar Search Tips:
- the “author:” operator returns results from a specific author; there should be no spaces between the operator and the author’s name, as in [author:flowers];
- the “+” operator makes sure your results include common words, letters or numbers that Google’s search technology generally ignores, as in [+de knuth];
- the “-” operator excludes all results that include this search term, as in [flowers -author:flowers];
- phrase search only returns results that include this exact phrase, as in [“as you like it”];
- the “OR” operator returns results that include either of your search terms, as in [stock call OR put];
- the “intitle:” operator as in [intitle:mars] only returns results that include your search term in the document’s title.
Note that the operator only affects the search term directly following it, so if you want the operator to apply to a phrase, put the phrase in quotations.
If you’re trying to search for an opinion written by a particular judge or justice, you can try the “author:[judge]” operator. Note, however, that this isn’t always accurate. For example, the first search result of “author:Scalia” was United States v. Booker, which was actually authored by Justice Stevens. For more accurate results, try searching using the phrase: “Scalia delivered”. Using the foregoing operators, you can construct a more intelligent search.
4. Viewing a case
One of the most notable features of the case view in Google Scholar is the formatting of footnotes — as endnotes. If you’re married to in-text footnotes, Google Scholar isn’t for you.
Also be aware that Scholar provides less internal citations than Lexis or Westlaw, particularly with respect to authority published before 1950. Another important omission in Google Scholar’s case-view are links to statutes, regulations, etc. So if you’re primarily searching for codified law, Google Scholar probably isn’t the place to find it. However, simply cutting and pasting a statutory citation into a Google search should link you to the text.
5. Using the “How Cited” Function
One of Scholar’s most useful features is the “How Cited” tab at the top of a case. Once you’ve located a relevant case, clicking “How Cited” can lead you to a wealth of related authority, in very much the same way as a KeyCite or Shepard’s check would. The only notable difference is that Google doesn’t provide treatment symbols/categories next to related cases. For an example of a How Cited page, click here. How Cited provides three (3) distinct features.
The first aspect of the How Cited tab is the “How this document has been cited” function. Essentially, this provides a list of cases that actually discuss the main case in some way. Clicking on the case links will take you directly to the passage relating to the main case. This allows the user to actually read the case and decide on the treatment.
The second aspect of the How Cited tab is the “Cited by” function. This provides complete search results within the Google directories for citations to the main case. This is the closest Google Scholar gets to KeyCiting/Shepardizing. Simply peruse decisions rendered after the date of decision in the main case to learn subsequent treatment. Be aware, however, of Scholar’s limitations; it’s unclear how quickly new cases are posted.
The final aspect of the How Cited tab is the “Related documents” feature. These search results provide an expanded listing of journal articles, books, and other secondary authority, as well as related cases. This is yet another way to find related authority and helpful background on the law.
UPDATE: Google has announced that it is now listing cases based upon the extent to which the cited case is discussed, which– as the Law Librarian Blog points out– brings Scholar even closer to KeyCite/Shepard’s functionality. Here’s the text explaining Google’s change, courtesy of the Law Librarian Blog:
Today [March 8], we are changing how we present citations to legal opinions. Now, instead of sorting the citing documents by their prominence, we sort them by the extent of discussion of the cited case. Opinions that discuss the cited case in detail are presented before ones that mention the case briefly. We indicate the extent of discussion visually and indicate opinions that discuss the cited case at length, that discuss it moderately and those that discuss it briefly. Opinions that don’t discuss the cited case are left unmarked.