Guerrilla research.

• Author: Wear, Nancy C.
• Position: Florida

If, as Sebastian Stark of TV's "Shark" says, "Trial is war; second place is dead," then a lawyer's weapons need to be really, really sharp. The media image is of "lawyer as orator" and "lawyer as investigator," but the truth is that the biggest and most dangerous weapon in any lawyer's arsenal is--drum roll, please--the law book! The computer has not changed the value or power of research as a weapon; it has only modified the tools used to craft it and keep it sharp. This piece is called "guerrilla research" because research levels the playing field for small firms and solo practitioners, much as the sharpshooting of the Minutemen improved the odds against the mass of British troops during the American Revolution. Learning to do research well and fast is the only surefire way to ensure consistent success (and, of course, to avoid embarrassing and even needless defeat). By offering a number of useful shortcuts, the author hopes this article convinces you to keep doing research.

I was not always a researcher. After 20 years of criminal litigation and appeals, during which I relied almost exclusively on the Rules of Criminal Procedure, the Florida Statutes Annotated, and, occasionally, the evidence code, I started writing for a business litigation firm. Because I didn't know a thing about the common law, civil procedure, or the actual practice of civil litigation, I dug into "book research," not just the cases and statutes, but treatises, digests, hornbooks, law reviews, and encyclopedias. I soon learned that good research puts the lawyer in command in state or federal court, at trial, or on appeal.

Here is an example of what I mean. One day, my firm asked me to write a "Rule 11" motion in a federal case seeking sanctions against the opponents and their lawyers. I had never heard of such a motion (or of Rule 11, for that matter), so I read the rule, the annotations, and the seminal case law. I also looked at a previous recent example in the firm's files. The rule had been recently changed, so the "example" on file was completely wrong (and, indeed, had been denied for that very reason). Armed with knowledge of the current rule and supporting case law, I was able to write and correctly serve the Rule 11 motion, which ultimately contributed to an ample and collectable judgment against the opposing attorneys (whose clients had long descended into insolvency).

Two other recent examples: A client came to me with a judgment and sentence which required payment of restitution to a police officer as a prerequisite to early termination of his probation. Because my first action on taking the case was to look at the annotations to the restitution statute, I learned that restitution cannot be awarded to a law enforcement agency or a police officer (a fact overlooked by both the prosecution and the defense), and the probation was terminated on my motion. In a county court case, my client was sued for about $600 in attorneys' fees by her former lawyer based on a retainer agreement which had a prevailing party attorneys' fee provision. After we won the case at trial, continued research enabled me to obtain dismissal of two of the attorney's appeals, win a third appeal, and land multiple attorneys' fee awards.

Research helps in two...