CHAPTER 1 THE RESEARCH PROCESS AND LEGAL ANALYSIS

• Jurisdiction: Oregon

Chapter 1 The Research Process and Legal Analysis

I. Oregon Legal Research

The fundamentals of legal research are the same in every American jurisdiction, though the details vary. While some variations are minor, others require specialized knowledge of the resources available and the analytical framework in which those resources are used. This book focuses on the resources and analysis required to be thorough and effective in researching Oregon law. It supplements this focus with brief explanations of federal research and research into the law of other states, both to introduce other resources and to highlight some of the variations among jurisdictions. Skills developed in learning to research the law of one jurisdiction can often be transferred easily to research the law of another jurisdiction.

This book is not designed to be a guide to every Oregon resource in the law library or search engine on the Internet. Many resources contain their own detailed explanations, and some online providers of legal documents provide tutorials for their current platforms. Instead, this book introduces the resources needed at each step of the research process and explains how to use them effectively.

II. The Intersection of Legal Research and Legal Analysis

The basic process of legal research is simple. Using search terms both online and in print sources, you will locate relevant documents, read those documents and others that they reference, ensure that the documents you are reading are current, and analyze your client's issue.

Legal analysis is interwoven throughout this process, raising challenging questions. How will you frame the legal issues you must research? How will you decide which search terms will produce the most comprehensive and relevant research results? How will you know from skimming a results list which documents deserve more attention? When you read the text of a document, how will you determine whether it is relevant to your client's situation? How will you learn whether more recent material changed the law or merely applied it in a new situation? The answer to each of these research questions requires legal analysis. This intersection of research and analysis can make legal research very difficult, especially for the novice. While this book's focus is legal research, it also includes the fundamental aspects of legal analysis required to conduct research competently.

III. Types of Legal Authority

The goal of legal research is to find constitutional provisions, statutes, administrative rules, and judicial opinions that control your client's situation. In other words, you are searching for primary, mandatory authority.

Law is often divided along two lines. The first line distinguishes primary authority from secondary authority. Primary authority is law produced by government bodies with law-making power. Legislatures write statutes; courts write judicial opinions; and administrative agencies write rules (also called regulations). Secondary authorities, in contrast, are materials that are written about the law, generally by practicing attorneys, law professors, or legal editors. Secondary authorities include law practice guides, treatises, law review articles, and legal encyclopedias. These secondary sources are designed to aid researchers in understanding the law and locating primary authority.

Another division is made between mandatory and persuasive authority. Mandatory authority is binding on the court that would decide a conflict if the situation were litigated. In a question of Oregon law, mandatory or binding authority includes Oregon's constitution, statutes enacted by the Oregon legislature, opinions of the Supreme Court of Oregon,¹ and Oregon administrative rules. Persuasive authority is not binding, but may be followed if relevant and well reasoned. Authority may be merely persuasive if it is from a different jurisdiction or if it is not produced by a law-making body. In a question of Oregon law, examples of persuasive authority include a California statute, an opinion of a Washington state court, and a law review article. Notice in Table 1-1 that persuasive authority may be either primary or secondary authority, while mandatory authority is always primary.

Table 1-1. Examples of Authority in Oregon Research

Mandatory Authority	Persuasive Authority
Primary Authority	Oregon's constitution Oregon statutes Oregon Supreme Court cases	Indiana's constitution California statutes Washington Supreme Court cases
Secondary Authority	Practice guides Treatises Law review articles Legal encyclopedias

Within primary, mandatory authority, there is an interlocking hierarchy of law involving constitutions, statutes, administrative rules, and judicial opinions. The constitution of each state is the supreme law of that state. If a statute is on point, that statute comes next in the hierarchy, followed by administrative rules. Judicial opinions may interpret the statute or rule, but they cannot disregard it. A judicial opinion may, however, decide that a statute violates the constitution or that a rule oversteps its bounds. If there is no constitutional provision, statute, or administrative rule on point, the issue will be controlled by common law, also called judge-made law or case law.²

IV. Overview of the Steps in Legal Research

Conducting effective legal research means following a process that contains discrete steps. This process leads to the authority that controls a legal issue as well as to commentary that may help you analyze new and complex legal matters. Each step can be completed using a variety of resources and techniques, which will be explained throughout the remainder of the book. The outline in Table 1-2 presents the steps of a basic research process.

Table 1-2. Overview of the Steps in Research

1. Prepare to research. Gather facts, determine the issue, decide which jurisdiction controls, and generate a list of research terms. Decide whether to conduct your research in print or online, and determine which resources might be most effective for your project. Review search techniques, and construct searches to run in online databases.
2. Consult secondary authorities such as practice guides, treatises, legal encyclopedias, and law review articles. Secondary authorities explain the law and refer to primary authorities.
3. Find enacted law: constitutional provisions, statutes, or rules. Read these primary authorities carefully, update them if necessary, and then study their annotations for cross references to additional authorities and explanatory materials.
4. Research case law by searching the full text of relevant databases or by using topical indexes and digests.
5. Read all legal authorities carefully. Analyze their relevance to your issue and determine whether more research is needed.
6. Update legal authorities by using a citator such as Shepard's or KeyCite to (a) ensure that an authority is still respected and (b) find additional sources that may be relevant to the research project.
7. End your research when you have no holes in your analysis and when you begin seeing the same authorities repeatedly.

If you are unfamiliar with an area of law, you should follow each step of the process in the order indicated. Beginning with secondary sources will provide both context for the issues you must research and citations to relevant primary authority. As you gain experience in researching legal questions, you may choose to modify the process. For example, if you know that a situation is controlled by a statute, you may choose to begin with Step 3.

V. Preparing to Research

This part of the chapter explains in depth the various components of Step 1 of the research process.

A. Gathering Facts, Determining the Issue, and Deciding Jurisdiction

The beginning of any research process is to gather the facts of the client's situation and understand the client's issue. In law practice, gathering facts may include interviewing the client, reviewing documents, and talking to colleagues who are also working for the client. Understanding the client's issue contains two parts: knowing what the client hopes to achieve and determining the legal questions that will allow the client to achieve it.

As you are getting started, you must decide which jurisdiction's law controls. This book assumes that the client's situation is controlled by Oregon law, but you must determine whether federal law, the law of another state, tribal law, local law, or even foreign law is binding.

B. Generating Research Terms

Next, generate a list of research terms. These may be legal terms or...