CHAPTER 1 INTRODUCTION TO LEGAL RESEARCH

• Jurisdiction: United States

Chapter 1 INTRODUCTION TO LEGAL RESEARCH

A. OVERVIEW

The practice of law involves many transactions, both oral and written, that depend upon legal research to provide appropriate support for each argument or position taken on behalf of clients. This is true, for example, whether that research appears in the form of a client letter, a memorandum to a supervising attorney, a brief to a court, or an oral argument. The process of identifying and finding relevant law is called legal research.

Traditionally, legal research has been done by "manual" research. In other words, the researcher had to go to the law library and find the law in print or "hardcopy" or in some form of microform such as microfilm and microfiche. Over the last 100 years, the publishers have made this process easier to access through better systems for accessing the law by subject matter instead of chronological order, providing detailed indices, and a system for updating the law.

But even with these advances, the researcher probably would not refer to the "good ol' days." With the advent of computers and the Internet, there also came changes in the way legal research could be done. Thus, there is now available legal information both in print form and in electronic databases. Each method of legal research has its advantages and disadvantages. To do legal research accurately, quickly, and efficiently, the researcher must have a basic understanding of each method. Each is an important component and is best suited to certain types of information.

The law and sources interpreting the law are voluminous. Each has its particular research tools and skills. At first, this may seem a little overwhelming. The good news, however, is that there is a pattern to the research which guides the researcher through the process and a practice which gives the researcher the confidence that if there is law on the subject that it can and has been found. It is the goal of this text to share that pattern and practice which will give the researcher the skill and knowledge of this important legal task of finding, analyzing, and communicating the law. The more the researcher utilizes these skills, the easier research becomes. Thus, the researcher is beginning on a journey that will be important in the practice of law.

B. UNDERSTANDING THE BASICS

Currently, legal information is published in three main formats — print or hardcopy, microform (such as microfilm and microfiche), and electronic. Traditionally, legal materials have been in print and microform formats. This text was designed to teach the analysis and patterns for manual legal research in these formats. Through the "electronic version" sections and this chapter, however, insights and resources will be shared on electronic research. It is not designed to teach the detailed mechanics of electronic research, as that is better taught through the hands-on training that is provided by LexisNexis (or Lexis) and Westlaw.

Even with the continuing and constant-growing electronic format, there are important reasons to understand how to research using print resources. These include:

1. Understanding the legal analysis of manual research in the print format helps the researcher because the organization and elements of electronic databases are based on the structure of printed material.
2. The researcher may not be able to find relevant sources in an electronic database. It is important to know the scope of the database. For example, the database may only contain cases back to a certain point. More significantly, there is a wide variety of treatises that are not available electronically. Furthermore, electronic tools probably do not contain an updating or verifying function unless the researcher is using Lexis Advance or West-lawNext.
3. Technology is always wonderful when it is working. There may be, however, times when the server is down or the researcher does not have access to a computer or the Internet.
4. Cost and time are usually concerns whether in a small law firm or a large one. Electronic research is more difficult when the researcher does not know the area of law as well, and therefore, it wastes both time and money. Although some research time may be passed on to the client as "billable hours," it may not be possible to do this for all or most of the time spent particularly if a large amount of time has been spent because the researcher could not efficiently find the information electronically.

At the beginning of any legal research project, certain things must be done. First, the researcher must identify the legally significant facts. Legally significant facts are those that will cause the outcome to turn in one direction or the other. This analytical process will be described in detail depending on whether the researcher is looking for a case, statute, or administrative materials.

Second, from the legally significant facts, the researcher must determine what the issue is. Determining the issue keeps the researcher focused instead of going down trails that are not relevant.

Third, there needs to be a determination as to whether manual or electronic research will be the most efficient tool for the researcher and cost-effective for the client.

Fourth, once the information is found, it must be updated to ensure that it is the most current law. The researcher has both an ethical duty and practical obligations to the client as well as being an "officer of the court." Needless to say, it would be, at a minimum, very embarrassing to discover from opposing counsel or the court that the information was no longer current. The court does not take kindly to such failings and there are consequences for that conduct which are discussed below.

Fifth, once the legal authorities have been found, the researcher must communicate the information. This can be in various forms including a letter to the client, memoranda to the supervising attorney, or brief to the court. The authorities must be properly cited in the document. This enables the reader to find and verify the law.

Although law school studies give the lawyer a good basic knowledge of the law, it is impossible for a lawyer to know all of the law. Therefore, it is important for the lawyer to know how to quickly, efficiently, and accurately find the law and update it for the most current information.

The ethical rules of our profession outline the role and obligations of an attorney. For example, it is an ethical requirement that the lawyer is competent and has provided the court with accurate information. The Preamble to the Model Rules states: "A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice." Canon 6 of the Code of Professional Responsibility states that lawyers are to know "these plain and elementary principles of law which are commonly known by well-informed attorneys, and to discover the additional rules which, although not commonly known, may readily be found by standard research techniques."

Failing to do competent legal research can not only be a costly mistake, but it can have serious consequences for both the lawyer and the client. Here are a few examples:

• In Smith v. Lewis, 530 P.2d 589 (Cal.

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