The Basics of Legal Research
Essential Legal Research Strategies for Paralegals
When I was first starting out and talking with attorneys of different backgrounds and ages about their experiences in finding good sources of law they often would say some version of "I remember when…". Depending on the age of the attorney this meant various things. For the more senior attorneys I would hear statements about how they had to search the library and read through all the books to figure out what they were doing, others told me they would go into law libraries of other law firms and paralegals would be searching around on the Internet. These stories of "old" research methods were often met with amazement by junior lawyers who have learned how to do busy work or hire a librarian to hunt down what they were after. Today’s research methods look a lot different than they used to, but the need to look up laws is still the same. While the tools may have changed the needs of a paralegal are still the same and they still need to learn the best ways to do research. Legal research is necessary for the success of any paralegal. A paralegal that knows how to do legal research is an invaluable tool to the attorneys and should be relied on to find answers to their questions, find information to support their case and to serve as a resource whenever they need it. According to Black’s Law Dictionary (10th ed.) legal research is defined as "the process of identifying and retrieving information necessary to support legal decisionmaking." Legal research is critical to providing the most complete information possible to the attorney . A paralegal that is strong in legal research serves as an asset to both the attorney and the client. This is a skill that can’t be overlooked, so all legal professionals need to understand how to effectively do legal research. The ability to do legal research is mandatory for all paralegals. All paralegals should be well versed in the use of both primary or secondary legal research and to understand how to find accurate and up-to-date information. The information found in legal research is used for a variety of reasons and each form of research is used for different types of circumstances. All paralegals need to understand the advantages and disadvantages of each from both a legal standpoint as well as the technology involved in performing these tasks. Primary and secondary sources are the fundamentals of legal research. A paralegal must understand what both forms of research entail. Primary legal resources are the laws themselves and include constitutions, statutes, court rules, administrative code rules and regulations, international treaties and executive orders, and administrative codes and regulations. The secondary resources include encyclopedias, treatises, loose-leaf services, annotated codes, journals and legal periodicals, legal encyclopedic, and legal dictionaries. You learn more about primary and secondary resources, legal research skills such as citation and finding the right resource for your need, and the actual methods of research in Essentials in Legal Research designed to help paralegals gain the skills needed to effectively research the law.
Tools of the Trade for Legal Research
In the world of legal research, there are two primary types of sources. They are known as primary and secondary sources. Primary sources include statutes, case law, regulations, and court rules. These sources contain the law itself and are legally binding. Secondary sources, including legal encyclopedias, treatises, annotated codes, and law reviews, are not legally binding and are usually used to research and interpret the law. Statutes: States and the federal government each have their own code which contains all statutory law. Paralegals can assist in analyzing both state and federal legislation and its impact on a legal issue or case. Computer aided legal research (CALR) systems can also be used in this process. Statutes can be broadly divided into two categories: substantive and procedural. Substantive statutes govern rights and duties among individuals or between individuals and the government. Procedural statutes outline the process or procedure that governs the handling of a lawsuit. Case Law: Analyzing cases is one of the most tedious tasks that paralegals face daily. Knowledge of the various sources of case law is crucial to being an effective investigator and researcher. Case law is published in two basic forms: print and electronic. Computerized legal research systems have replaced the printed versions of these publications for most legal minds. Although online research has become the predominant method of research, paralegals must know when to physically research case law. An example of this would be in the case where you know the name of the judge who may have presided over your case. In addition to researching case law, you (paralegals) may also be called upon to research statutory or constitutional law. This can be done quickly and accurately using a computer.
Case digest publishers produce books and databases that organize and digest case law by subject. If you know the name of a case, you can quickly locate it in a digest. If you do not know the name of the case, all hope is not lost. You can search legal digests by citing characteristics of the case you are looking for. Characteristics include facts of the case, the opinions of the justices, and the legal topics and issues involved in the case. To obtain this information, you must first select the source you want to use for your search. The three major sources for digests are: Federal District and Circuit Court digests contain case law from U.S. District Courts, U.S. Circuit Courts, and U.S. Courts of Appeal. This digest is invaluable in searching for federal appellate cases because federal courts are not required to follow precedents set by other circuit courts. Circuits differ on constitutional issues, so case choices can vary from one circuit to another. In conducting a circuit court search, you can include as many circuits as you want to review in a single search. It is important not to exclude any circuit, as this may leave out binding opinions that apply to your case. State and District Court digests compile case law from specific states and local jurisdictions. These resources provide an easy-to-use index that allows you to search case law quickly. Different states have different methods for dividing up their district courts. The organization of a state’s district court digests may not be the same as the federal circuit court digests. For example, federal district court digests generally organize cases by district, while state district court digests organize cases by subject matter. Annotated codes provide an easy way for you to find cases, court rules, and statutes related to a legal topic or to a specific case or statute. They save a considerable amount of research time because cases, statutes, the court rules, and other sources are all contained in one book. Annotated codes are easy to use and are especially useful to clerks because the information is entirely self-contained. Several publishers produce annotated codes, but the American Law Reports (ALR) 2d Digest sets the standard.
Legal Research Online
A hallmark of paralegal work is organizing the mass of information a client provides and legal research for the best way to resolve an identified issue. Advanced Internet searching, in combination with using a hands-on approach with the research tools that are available online, will give you the advantage in helping your attorney formulate a response. The internet has enabled paralegals to concentrate more on research specific to your area of law as opposed to general research about a legal issue. Legal research is no longer confined to the library; legal research includes online databases. Many law firms, companies, and agencies have access to online legal research platforms such as Westlaw, LexisNexis, or Bloomberg Law.
Online legal research platforms are not free; they are subscription-based services and costly. In-house paralegals have the opportunity to take advantage of these platforms and should become familiar with them. Contract and freelancer paralegals may not be able to afford to subscribe to these platforms, however, may have the ability to do research at a local public or university library.
Most of the platforms have similar features and benefits and some disadvantages.
Westlaw is well organized, customizable, provides consistent results, and has a wide range of primary and secondary content. Using open web search technology, Westlaw allows researching the same way you search Google. This eliminates the need to rerun searches based on the type of content you are looking for. Westlaw has created a new feature called KeyCite that enables users to look up the current status of a case and verify that it has not been overturned.
Westlaw can be costly to use, priced according to how much you use the platform, licensed users, number of documents searched, and type of materials requested. Depending on how you use the service, it can become very expensive, even for in-house paralegals. If your law firm does not have its own time keeping system, you must log all your research separately; creating invoices can take time and effort.
LexisNexis is somewhat similar in features to Westlaw. Lexis is user-friendly, allows you to search by keyword and Boolean search, and brings up relevancy-ranked results. The downside to LexisNexis is that you can only use it with one browser (Internet Explorer) and one operating system (Windows). The other downside is the newness of the platform. Lexis launched its new platform all at once so the learning curve is steep.
The platform costs more to use than Westlaw, has a steep learning curve. Lexis has gone from 4 previous platforms to 1 platform which makes it complicated for some. Lexis also charges clients for research performed by the paralegal when most law firms do not charge clients for paralegal work.
Bloomberg Law is a little bit different than Westlaw and LexisNexis, where they are primarily legal research-based. Bloomberg is primarily a business research platform, so you will be able to find some business information. Bloomberg allows users to open multiple tabs, and is easy to use. One downside to Bloomberg is the primary navigation is on the top of the page so if you are used to others platforms and have a poor memory, this could be an issue for you. Bloomberg can be pricey depending on how you use it but having access to the platform can benefit you in your research.
As with any of the platforms, before performing your research, be clear about what you need (the objective), which will save you time and results in the correct information.
Mastering Effective Legal Research Practices
To ensure an efficient and organized approach to legal research, paralegals should be mindful of several key strategies. At the outset, paralegals should select appropriate search filters to focus the scope of their research. Notably, many credible sources of legal authority contain built-in filters that allow the ability to search by jurisdiction, case type, date range, and many other criteria. It is advisable that paralegals familiarize themselves with these tools. In addition to being an effective means of organizing research, filters help save time and concentrate search efforts on the most relevant authorities. Boolean operators, such as "AND" and "OR", can be used to further narrow a paralegal’s query. Boolean logic uses this language to connect or exclude basic words in a search to create a more effective and specific result. For example, if a paralegal sought to conduct research on cases surrounding lip injections, they might first enter a search for the word "lip" to see what results were found. However, the search engine will look at every word on the page and may return results for "lip balm", or "lip chat", which may be unrelated to the subject matter at hand. Instead, the paralegal may choose to add the word "lip", in addition to "lip balm" to increase the likelihood that the results returned are as accurate as possible. Similar in function to traditional Boolean connectors, quoted phrases, such as "negligent misrepresentation", retrieve authorities that contain the exact phrase contained in the search bar. As with Boolean operators, this technique will deliver results that are focused on a specific theme or concept across cases, statutes, or regulations. Once the research has been synthesized and organized, the paralegal must take time to verify and update the legal authorities cited. This may be accomplished by checking the citation trail, which is a list of all other authorities that have referenced a particular source. Most platforms provide a tracking feature that identifies references so that the paralegal may update their research, add similar authorities to their collection, or make notes of new laws or cases that may alter the validity of the authority in question. As the last step, paralegals are required to review the Law Report for S.C. and SCAD. The Supreme Court and the Court of Appeal have been publishing law reports for ex tempore judgement and ruling by the Court for a while now through e-justice. As of now, the function enabling users to view and search through the SCAD (Supreme Court Advanced Database) is only available in e-Justice site and it works on all browsers.
Assessing and Interpreting Legal Resources
It is just as important for paralegals to be able to evaluate the credibility of their sources as it is for a lawyer to do so. This means looking at possible bias, looking at the sponsorship of the site, and the background of the author are all things that should be considered. This may seem like a lot of work…maybe more than you were used to in law school…we will employ some shortcuts and a little intuition.
Paralegals often are asked to deal with informal legal research, meaning that they are not doing the research in an academic setting. Instead they are asked to conduct research to locate current and relevant legal information. Fortunately, most of the time, there is no question as to what is being requested. For example, look up Mississippi law on wrongful termination. The question is clear, and since there are perhaps dozens of sources available, online and offline, you may have the luxury of limiting which sources you will use based on your understanding of the material. Obviously, you are not going to be using the same resources for litigation matters as you would for estate planning. While this is sometimes necessary to define, in this case, the research was limited to a specific topic.
When asked to perform legal research, it is not always so clear what you are being asked to do. This is especially true for general practice firms, where the paralegals are often responsible for performing legal research regarding issues that they may have little or no experience with. For example, a paralegal may be asked to perform legal research on the liability of a contractor who unintentionally damages a client’s neighbor’s car while moving the client’s brick wall. (Yes, this actually happened.)
In these situations, the paralegal should rely on their intuition. Think of all of the things that you did not know about the topic before you were given the assignment. Were you familiar with property rights, workman’s compensation, personal injury claims, bricks, china, etc.? There are most likely many areas of law that you have no familiarity with. When you identify those areas, you are able to identify logical sources of research. In this example, the list of sources of research is fairly obvious:
Of course, today that would involve searching the web rather than going to a library. In practice , it is more probable that the paralegal would do one of two things. They might have sufficient experience with the issue that they can go directly to their normal go-to sources, which would normally include briefs, motions, memorandums or whatever precedents the firm currently has. Alternatively, the paralegal might contact another firm that has experience in the topic. Even if the paralegal has very little experience in the topic, having enough experience in the rest of the firm’s practice areas already provides them with a great deal of information that they can combine into a single search, saving them time.
At this point, the rules pertaining to a final search window are nearly identical to those for the first search. The paralegal needs to identify what the firms standards and preferences are for citation, what scope of print sources are commonly considered the "go-to" or primary sources, and what the starting point should be.
Once the search is conducted and the materials are collected and/or analyzed, the paralegal should set themselves back as a layperson and ask themselves the very same questions that a layperson would likely consider. These questions all revolve around the reason why the individual is reading the document in the first place.
Using these questions as a guide, the paralegal can decide which documents are truly relevant to the efforts, and which are merely interesting but not actually helpful. This, in turn, allows the paralegal to focus their efforts on the sources that are most relevant to the issues at hand.
This approach to evaluating and analyzing sources can save a paralegal from spending all of their time on a single piece of research that many have written on, or one that copies the work already done beforehand. It is simply taking the wisdom of the crowd.
In conclusion, the evaluation and analysis methods used by paralegals is based heavily upon without the lawyer. Paralegals are used to dealing with information that is muddy, situations that are unclear, and lack of consensus on the topic at hand. This means that paralegals have to be especially skilled at doing research, evaluating that research, and then communicating the relevant information in a way that both is fair to the primary sources and understandable to those who have to rely on it.
Keeping Abreast of Legal Updates
The legal field is constantly in flux, with new legislation, landmark court rulings, or trending areas of practice establishing new case law all the time. For paralegals tasked with conducting legal research, this means that yesterday’s resources may not actually lead to the most up-to-date or accurate information today.
Staying current on legal developments is crucial for the legal researchers at your firm or organization. A paralegal who doesn’t keep up with changes in the law can inadvertently compromise essential documents or lose a case. If you haven’t already done so, it’s time to establish a regularly-scheduled rhythm for staying up-to-date on recent developments in your area of practice.
Signing up for legal newsletters is a crucial first step. Newsletters can be both informative and entertaining, providing insight into new rule changes or important court rulings while also giving you a heads-up on industry trends. Your local bar association or other legal professional organizations are also an excellent source for newsletters and valuable events such as webinars, chats, and more.
In addition to newsletters, consider subscribing to general legal blogs. While it may be tempting to stick only to sites focusing on your area of expertise, you’ll actually benefit more from reading multiple different blogs. This will give you a larger picture of the legal industry and a better understanding of how to conduct legal research across areas of practice.
It’s important to keep a running list of legal research blogs, newsletters, podcasts, and other resources. Set a reminder on your calendar and make sure that you always set aside time to stay up to date on the latest in legal research. That way, you won’t end up scrambling to keep yourself up-to-date.
Ethical Aspects of Legal Research
Legal research is often an integral element of a paralegal’s work. Whether it be researching a legal standard required in filing a motion, or a witness’s prior testimony before the Court, the paralegal’s responsibility to conduct thorough and accurate research is an ongoing and essential aspect of the paralegal profession. When conducting legal research, there are certain important ethical considerations that must be taken into account by the paralegal.
One ethical responsibility that the paralegal must maintain while conducting legal research is the need for confidentiality. Often paralegals conduct searches in which sensitive information needs to be safeguarded, both for attorney-client privilege as well as privacy reasons. It is the duty of the paralegal to ensure confidentiality when storing data and information gained from their legal research. When searching databases, the paralegal must also be aware of terms of use policies, and only access information that is permissible, as unauthorized access (such as accessing a restricted database) can raise ethical concerns as well.
Another ethical concern paralegals face in conducting legal research is to avoid plagiarism . The paralegal’s research may be in the form of a memorandum, a draft of a brief, or even a legal brief that is being filed on behalf of an attorney. It is the paralegal’s responsibility to ensure that any information gleaned during research is accurately and fairly quoted, and that the original source is properly cited. The practice of copying information from research materials, and taking credit for the information therein, amounts to plagiarism which is a serious ethical offense.
Finally, the paralegal has an ethical responsibility to ensure that the information they are reporting on (usually to their attorney supervisor) is accurate. When conducting any research, the paralegal should not take the information provided to them at face value. Instead, the paralegal must cross-reference the information or seek guidance from their supervising attorney to confirm its accuracy.
Paralegals should be cognizant of these ethical responsibilities to ensure that their legal research serves the purposes of the attorney and the client without compromising these important ethical principles.