The Strength Is in the Research

• Publication year: 2007
• Pages: 20
• Citation: Vol. 20 No. 4 Pg. 20

Utah Bar Journal Volume 20.

Vol. 20, No. 4, 20. The Strength is in the Research

Utah Bar Journal
Vol. 20, No. 4
May/June 2007

The Strength is in the Research

The Strength is in the Research

by Duane L. Ostler

America in the mid 1780s was in turmoil. The sacrifice of the sons of liberty had won the revolutionary war, but not the peace. The economy was tattered and practically nonfunctional because of the ongoing British embargo. The various states were constantly quarreling about who should pay war debts There was much resentment among the common people who had borne the suffering of the war against those who had profited by it. And in the midst of it all, the Continental Congress was powerless to do anything about the deteriorating situation

At a time like this, who in their right mind would think of doing research? After all, how could research possibly solve problems such as these? Fortunately for us, however, one enlightened individual did just that. He made a diligent study of all governmental systems, ancient and modern. He pondered their strengths and weaknesses, and contemplated their days of greatness and what had brought about their eventual downfall. Then he researched some more

Based on the core principles he found in his research, he constructed a model of government. He then gathered with other men of influence and presented his plan. His name was James Madison. The plan he presented was the Virginia Plan, on which our constitution is based. The gathering was the constitutional convention, which adopted Madison's plan, with a number of changes, as a new system of government. No one else had come prepared with such a proposal. Although some delegates from the smaller states hurriedly created an alternate plan in a desperate attempt to create more rights for small states, their plan was quickly discounted as inadequate since it did not have as strong a foundation of research as Madison's plan. In short, research changed the course of history.

So Research Got Us A Constitution, But What Can It Do For Me?

One of the least appreciated and most frequently overlooked tools in the attorney's arsenal is that of legal research. While all attorneys know how to do it (or at least think they know how), and frequently engage in it in some fashion during their practice, surprisingly few ever come to understand how powerful it can be.

Creative and thorough research can make or break your case. After all, how can you lose if you have a dozen cases, directly on point, supporting your position? Research will make a strong case unbeatable. Even if your case is not that great, referring to cases and other legal sources can give it added strength. Indeed, research in a mediocre case will tell you which strong areas to emphasize, and which weak ones to avoid. And if your case is extremely weak, research will give you the basis for a heart to heart chat with your client that may save you both a great deal of embarrassment.

While research at all stages of a case is vital, it is particularly important to do research early in the case, before filing the complaint or answer. Not only is such preliminary research required by Rule 11, but it will also help you know where you are, and where to focus your discovery - and whether you even have a case at all, or should try to settle. You should never spew causes of action or defenses in your pleadings without first verifying them with legal research.

Many attorneys fail to realize how devastating things can be if research is not performed. Consider, for example, the case of State v. Moritzsky, 771 P.2d 688 (Utah App. 1989), in which a criminal defendant prevailed on his ineffective assistance of counsel claim because, as the court stated, "it appears to us that counsel merely overlooked the statutory presumption by failing to check the 'pocket-part' of the Utah Code." Id. at 692. Or consider the following thoughts of Justice Zimmerman from his dissent in Kaiserman Assoc. Inc. v. Francis Town, 977 P.2d 462 (Utah 1998).

This case is before us only because [counsel] failed to do even minimal legal research before garnishing Francis Town's assets ... [B]asic legal research illustrates that governmental entities are exempt from garnishment proceedings. It may be the case, as [counsel] argues, that the governmental...