Basic Legal Research Guide: Research Strategy

This short Powerpoint presentation outlines some of the techniques and strategies that might be helpful for your Research Memo.

It may be helpful to see a visual display of the research process. Attached is a general flowchart for the legal research process. This file was originally created by Sarah Glassmeyer at CALI (The Center for Computer-Assisted Legal Instruction). 

On pages 304-307 of Amy Sloan's Basic Legal Research textbook, you will find sample legal research flowcharts that show the thought process for handling certain types of research questions.

The purpose of this page is to outline a basic strategy for approaching your first open-research assignment. It is most likely that this assignment will be your trial brief in the second semester of Legal Writing. The steps outlined here are intended to assist you in that endeavor. If, by chance, you are reading this page and looking for information on how to approach your first research assignment for work as a clerk or an extern, you will find the approach outlined here to be fundamentally the same because the process of legal research, regardless of the setting, will bear similar characteristics. If you are looking for more in-depth information on applying this process to assignments in the workplace, see the Summer Associate Research Guide.

In many respects, following a “legal research plan” is much like briefing cases; there are certain steps that ought to be followed and certain landmarks to look for along the way. Once you become familiar with briefing cases, you no longer need to work through the process every time you read a case, as that process occurs in the background. So it is with legal research. Working through the steps outlined below might seem tedious at first, but they will become commonplace. In the future, even though you may not work through the steps individually, you can be more confident that your research is complete, thorough, and accurate. Since you've worked through the process a number of times, you’re following the steps whether you recognize them or not. Here are the steps:

• Step 1: Preliminary Analysis
• Step 2: Formulate a Research Strategy
• Step 3: Record Your Actions, Sources, and Results
• Step 4: When Do I Stop Researching?
• Step 5: Update Your Research
• Step 6: Begin Writing Your Brief 
• Step 7: Keep Calm and Carry On

Before you can begin researching, it is important to spend some time analyzing the materials that you’ve been given, looking for clues to assist you in researching the question that you have been asked to answer. You need to have a plan. Very often research goes wrong because the researcher attempts to begin researching without being able to answer some very fundamental questions about the topic. Librarians call this the “shot in the dark” approach. It cannot be emphasized enough (especially with your first research projects) that you take the time to answer the following questions and extract as much information as possible, before you begin researching. Part of the reason for this is that the answers to some of these questions will guide your research process in terms of locating and studying sources.

Before you attempt to answer a legal question, you must understand it. In order to understand the question, you have to review the preliminary materials that you have been given as a starting point. It is crucially important that you read everything that you’ve been given carefully, and ask yourself the following questions:

• What is the legal issue? Sometimes the legal question at hand may be ascertained easily from preliminary materials. For example, you may be given documents that comprise an initial case file and be asked (based on the facts) whether a potential client has a cause of action for intentional infliction of emotional distress (IIED) against a co-worker. Other times, it will be less obvious. Part of your research process may involve "learning” enough about an unfamiliar subject area to determine exactly what the proper legal question is. Legal research can sometimes be frustrating because it is a recursive process. In other words, sometimes you need to conduct a significant amount of research just to determine what the question is that you are trying to answer. Only then can you do additional research--often using the same sources--to determine what the answer to the question is.
• Who are the parties involved? When asking yourself these questions, think in terms of potential legal relationships and not necessarily labels. For example, when considering whether an employee has a potential cause of action against a co-worker, it may be important that the co-worker is the employee's supervisor. The supervisor–employee relationship might indicate that one person or party can exercise authority or control authority over another person or party.
• What is the thing in controversy? Is there a contract involved? Is a piece of property at issue? The answer to this question may be helpful because it often leads the researcher to specific legal subject areas. Knowing that a question is a matter of tort law or contract law reduces the universe of possible resources to consult and may lead directly to certain sources like a treatise on torts as a starting point.
• What type of relief is being sought? In other words, what are the possible bases of action or defenses? Is a party seeking monetary damages for an injunction? Again, knowing the answer to this question (if ascertainable at this point) may lead the researcher to a specific legal topic, such as what standard needs to be met in order to be granted an injunction given a particular set of facts
• What jurisdiction governs the legal question at hand? Again, at this point, it may be difficult to answer this question. Some legal topics are governed primarily by federal law (e.g., environmental, immigration, copyright) and some by state law (e.g., contracts, torts, criminal law). When you’re done with law school, you will be in a much better position to answer this question initially. If you did know the answer with some certainty, again this would restrict your universe of possible sources. If you knew, for example, that the question was governed by Illinois law, you could eliminate the federal law and forty-nine other states as potential research sources, or at least as primary authority. Doing so will allow you to focus your research much more narrowly and save a great amount of valuable research time.
• When did the events take place? The answer to this question helps to determine whether you are researching current law or historical.
• Are there any starting points embedded in the preliminary materials? For example, you may be pointed to a particular statute as a starting point. Or, you may have been given the name of the seminal case. If, for example, you knew that the answer involved a particular federal statute, you might begin by reading that statute and looking at annotations in an annotated federal code like U.S.C.A. or U.S.C.S.
• Is there any language that you don’t understand? If you need to look up terminology in a legal dictionary, by all means do so, and do so before you continue on. There’s no prize for assuming you know what a term means or how it is being used. If you make an assumption, and it turns out that you're wrong, you will need to start your research over again. That is a tremendously inefficient way to proceed.

At the conclusion of the Preliminary Analysis stage of the research plan, a researcher ought to have a basic understanding of the legal question and a list of search terms based on the questions above. The researcher might also know the jurisdiction to be searched, as well as whether it is current or historical information that is sought. A researcher's level of confidence will next guide the research strategy by indicating what resources should be searched, and in what order.  So, the first question is this:

Can you state your legal issue in a sentence?

• No.
  • If you are not confident that you can state your answer in a sentence, don't be dismayed. This is perfectly natural. But, before you start looking for answers when you don’t understand the question, it’s time to take a step back. You can’t find a needle in a haystack if you can’t identify the haystack you need. This is where most beginning researchers go wrong. Don’t go jumping into a rolling sea of contradictory opinions without the proper context for understanding the information that your research has gleaned. You'll just waste precious time.
  • If you can’t state your legal issue in a sentence at this point--in other words, if you are not confident that you have or understand all the terms of art, what the governing jurisdiction is, or what the governing law is--it's best to begin by trying to ascertain a very broad overview of your subject area. This is the Google Maps equivalent of changing your focus so you see a broader area in less detail. One way to "learn" about unfamiliar legal topics (like IIED, employment discrimination, or injunctions) is to begin with basic secondary sources like national or state encyclopedias or hornbooks. Students are often loath to take this intermediary step because it’s not the fastest way to get research done. One important point to keep in mind here is that often preliminary research involves looking for starting points rather than necessarily looking for answers. A basic secondary source will identify the answers to some of the questions asked above: Is IIED a question of state or federal law? Is it primarily governed by statutes? Case law? Or both? Are there particular statutes or cases in the area that you must be aware of in order to answer the question asked? Are there important terms of art that you need to know to execute an effective online search?.
  • After you review one or more basic secondary sources, you should at some point feel confident that you can state your legal issue in a sentence. When that happens, keep reading below.
• Yes, at least I think so.
  • if you have done a thorough job with your preliminary analysis, you may at this point be able to state your legal issue in a sentence. This is an extremely important point, because if you can state your issue in a sentence, it may be possible for you to begin searching for answers or pieces of an answer using a natural language or terms and connectors search. That technique, however, is not recommended if you are exploring an unfamiliar area of law.
  • Before you begin researching, take stock of what resources you have at your disposal. Don’t just go looking for cases. If you know that your question involves a state or federal statute, or section of code, retrieve that statute or section from an annotated code. Then, read it, and look at the annotations, especially references to secondary sources like law review articles or treatises that discuss and dissect the entire statute or section.
  • Likewise, now would be a good time to look for more advanced secondary sources covering your topic like treatises or law review articles. If you are not familiar with the treatises in the particular subject area, don’t be afraid to ask your friendly reference librarian for input. Doing so may save a lot of time in the long run. Another trick is to look at the practice pages on Lexis, Westlaw, and Bloomberg to see what major works or treatises are available through these resources.
  • Finally, remember that legal research is a recursive process. As you read more and learn more, you may have to adjust your question. Again, this is perfectly natural. However, it leads to the next important point about executing a research plan.

Executing a well-thought-out legal research plan is a lot like briefing cases. It’s drudgery at first, but it becomes a natural process after you’ve done it a few times. Those who don’t do it become stuck using the same poor technique or series of sources with no understanding of whether that technique will work or not. When all you have is a hammer, every problem becomes a nail. The best lawyers still brief cases. Very good lawyers brief cases mentally--whether they know it or not. Good researchers record their actions in some manner, shape, or form. Once you become familiar with a particular area of law and its related research resources, your research process will become intuitive. Your search history and Lexis, Westlaw, and Bloomberg can aid greatly with this part, but not every source is available through those three commercial services. So, it’s important to have a log separate from the database research histories, even though there will be some overlap.

For now, here are six good reasons why you ought keep a "research log" for your first few assignments, followed by an example of what one might look like:

• It’s helpful to have a a written, recorded research log to keep track of sources consulted because, if your question changes slightly as you learn more about your legal topic, you will have a record of what has and hasn't been searched, what terms or techniques were used, and what the results were so you do not re-create the wheel and waste your own time.
• Keeping a research log will give you some assurance that you haven’t missed anything. You can compare your list of potential sources like treatises, law reviews, annotated codes, case databases etc. against what you’ve actually researched. This will give you confidence that there isn’t more information lurking out there somewhere that you ought to have found.
• If you need to consult with a partner, professor, or a librarian about your research, it would be most helpful to have a written record of what your searches have been and where you have looked. From looking at the record, an expert will be able to determine whether there are sources that you should have searched, or whether your search terms need modifying, 
• In the real world, whether you are clerking, have an externship, or you are a summer or young associate, if the answer turns out to be "I cannot find an answer," you will need to prove that result is justified. The best way to do that is by presenting the assigning attorney with your research log based on your research strategy and searching.
• If you have to set aside your research project for any length of time, a research log will help you by identifying where you have been and what you have learned. Again, don’t re-create the wheel. If every time you sit in front of a computer you start fresh, you’re going to waste a lot of precious time, and you will have no confidence that you found everything that there is to find because you have no list or record.
• Finally, as you are researching, you will probably identify sources that seem interesting, or possibly helpful, but that may be outside the scope or focus of your current research. Write those down, and keep them somewhere--perhaps in a separate folder labelled "maybe." Never look serendipity in the mouth. Often times skillful researchers end up finding very good resources or bits of information in places they never thought they’d be. Don’t lose the opportunity to take advantage of this information simply because you failed to record its existence when you had the opportunity.

What a sample research log might look like:

Derived from Robert M. Linz, Research Analysis and Planning: The Undervalued Skill in Legal Research Instruction, Legal Reference Services Quarterly, 34:1, 60–99 (2015).

You can also use PowerNotes (available from the Law Library's A-Z Databases Page) to create a research log. This short video demonstrates how to export your research from PowerNotes into an Excel spreadsheet.

How do I know when to stop? In the real world, the answer to this question often depends on budgets and time restrictions (for more on this, see the Summer Associate Research Guide). For purposes of your first research assignment, however, the simple answer is that you stop when you keep seeing the same information, and new information that you come across is not any more helpful than what you already have. Generally speaking, you will keep coming across the same statute or section of code, the same cases interpreting that statute or section, and the same law review articles or treatise sections that discuss the primary law. Once you have this set of information—information that has been recorded in your research log—you can begin attempting to answer the question asked.  As you begin writing, however, you may uncover loose ends that need to be further investigated. So, in a sense, your research is never really done.

No matter what your research turns up, it’s important to update all of your sources using the citators available online: Lexis (Shepard’s), Westlaw (KeyCite) and Bloomberg (BCite).

• You must always make sure that authorities that you are citing are current and reliable; i.e., have not been overruled, superseded, or subsequently distinguished out of existence.
• Beyond that, if you are working on a brief as part of litigation, you can be assured that the opposing party will read your brief, read all your sources, and find any way to discredit or weaken the authority that you are relying on. If you cannot account for these, you run the risk of having your position undermined.
• Finally, remember that a good researcher uses a citator, both to ensure the validity of authority, and to locate additional related authority.

This step is misplaced because, for a number of reasons, you should begin writing well in advance of finishing your research. First, no matter how much research you have done, if you wait until the last minute to start writing, your written product will suffer. Second, the process of writing helps with your analysis. In other words, your brain won't let you write something that doesn’t make any sense. If you’re about to write something that doesn’t make any sense, it’s time to look back at the information that you’ve gleaned. If you wait too long to allow this natural process to occur, you lose the opportunity to fully explore the inconsistencies that your writing uncovers. Also, writing may uncover holes in your research that need to be filled. You need to allow for that possibility as well.

The surest way to be confident that your research is current and complete is to try several different approaches to the same problem. For example, to locate cases, you might employ a terms and connectors search, follow headnotes that are common among identified cases, and use a citator to locate additional authorities. If you were still considering more complex legal or policy issues, you might consult law review articles or a treatise. Each of these sources serves a slightly different purpose and will yield slightly different results. It's the sum of all these parts—and the realization that no matter where you look, you keep coming across the same information—that allow you to conclude that you have found all relevant materials, and you know exactly what to do with them.

Includes federal and state government Web sites, university Web sites, and organizational Web sites.