Legal research involves gathering information for a purpose and it is the purpose that usually determines the type of case you’ve undertaken. It is the process of finding an answer to a legal question or checking for legal precedent that can be cited in a brief or at trial.
Virtually, every appeal, lawsuit, criminal case, and legal process, in general, requires some amount of legal research and writing. However, this task is quite challenging.
Roundup- Top Solutions to Overcome Common Legal Research Challenges
1. To research the matter that exactly meets the client case
David Reischer, Attorney & CEO of LegalAdvice.com Corp.
The most challenging part of legal research is to make sure that the case law uncovered is most relevant and authoritative to the matter on hand. An attorney will oftentimes have a hard time deciding when it is sufficient to stop doing research and be confident that the finished search is, in fact, exhaustive.
My solution to know when a search is final and complete is to be methodical in how I conduct a search. An attorney must have a procedure for querying multiple databases and remembering the keywords searched. It is important to be very careful to track the methodology and tick off the databases and search terms queried in an organized manner when doing an extensive search. I like to write out a complete map of my search plan before even beginning.
As an example, in trademark litigation, it is not enough to find a relevant law on the specifics surrounding the distinctiveness of a mark, but oftentimes, it is helpful to find a prior case law where the exact mark or a similar mark has been in dispute.
In one particular litigation in which I was involved, it literally got discovered at the 11th hour that there was a prior ruling on the weak mark of a defendant that had not acquired a trademark with ‘secondary meaning’ outside the goods and services category of “INSURANCE”. This ruling was exactly on point because a prior judge had already ruled on the exact mark that was in contention.
Only by conducting a methodical search, we were able to uncover the relevant caselaw before giving up on our search.
2. No expertise in general legal research work
Michael Dye, Fort Lauderdale Criminal Defense Attorney at The Law Offices of Michael A. Dye, PA with 15 Years of Experience
I am assuming that you want a general answer, so I will start off with how I tackle a difficult project.
As a new attorney, everything is new to you. As you get more experienced, you don’t have to do much research. As long as you keep up with the new case law coming out in your area, you will be fine. Unfortunately, most young attorneys were never taught how to research complicated issues in law school.
Sure, they have the basics of Westlaw and Lexis. How to do a Boolean search? However, some of the most valuable resources are going to be your secondary source materials- specifically law journals and treatises.
For example, I had a client charged with a violation of the Lacy Act. All I know is that he had certain crocodile skins seized as he was coming back from Africa. So, I went to a law journal and found an article that discussed The Lacy Act prior to it being made law.
It discussed the purpose of the act, gave examples as to what would violate the act, and, since the legality in the United States is based on foreign laws, it gave examples of how to find the relevant law. Once I had read the secondary source, I could spot the relevant issues and properly advise my client for his rights and responsibilities.
Many younger attorneys consider secondary sources a luxury, but if you are doing any type of work which falls outside of the “norm,” secondary sources are invaluable and should be included in your legal research subscription.
3. Unaware of how to create research shortcuts
Donald E. Petersen, Company: Law Office Of Donald E. Petersen
You asked a great question. I assume you are probably focusing on research shortcuts that produce the most useful answer quickly. My response concerns how to increase the quality of the answer and requires a substantial up-front investment. My practice focuses on representing consumers in class actions and the Telephone Consumer Protection Act (“TCPA”) of 1991.
There are several opinions involving the TCPA available on WestLaw and similar databases. The TCPA is a rather focused statute which, generally speaking, prohibits:
(1) most types of nonemergency “robocalls” to cellular telephones made without the user’s consent;
(2) prerecorded telephone solicitations to residential telephones;
(3) calls made to residential numbers listed on the Do Not Call registry; and
(4) unsolicited facsimile solicitations.
The search terms are extremely limited due to the narrow focus of the TCPA. West seldom provides headnotes summarizing the various rulings in the TCPA cases.
I’ve read over 4,000 of the TCPA cases, “labelled” as the cases which raise important points by including the volume/page, case name, court, date, type of case (cell phone, text, prerecord, Do Not Call, or Fax), along with a squib of the holding which pertains to the relevant folders, and saved the files into multiple folders (including subfolders) which pertain to the legal issues.
With this knowledge base, I can identify and view the relevant TCPA cases on any issue without having to duplicate my research. This level of convenience comes in handy during trial, hearings, mediation, and discussions with the opposing counsel.
There are not any treatises devoted to the TCPA. After constructing this database, I believe that there is a market for such a specialized treatise. I plan to publish a TCPA treatise during the first quarter of 2020 to fill this need.
Lawyers who have laser-focused practices involving subjects for which a treatise is not available may find that constructing a thorough knowledge base is worth the substantial investment required.
Even if a lawyer decides that reviewing it is not worth the investment of time required to read every case involving a statute, labeling and saving the cases in folders based upon specific topics is a time saver if the lawyer’s practice routinely involves that statute.
4. Spending more on legal research resources
Jillian Caires, Expert Business Attorney at Smith + Malek PLLC
“The two biggest legal research challenges I have faced are the expense of legal research resources and practicing in a state like Idaho, where case law is either generation old or non-existent. Access to the best legal research tools is expensive, but in my experience, it’s worth the investment because it’s faster, more intuitive, and produces more relevant search results.
A good legal research tool reduces expense to clients and prevents spending hours down a legal-research rabbit hole.
“The other challenge comes from living in a state that is still, in many ways, the wild west. In Idaho, where my practice is primarily focused, we do not have expansive case law. There are some legal issues that have not been addressed for more than a century, and there are many that have never been addressed.
I have found that when a legal issue has never been addressed or hasn’t been addressed for a significant period of time, it is valuable to look at how neighboring jurisdictions have addressed the same legal issue. It is also helpful to know both how your judge thinks and the jurisdictions that your judge will be more likely and less likely to trust.”
5. No easy access to research sources
Rebecca Ritchey, CEO of Sibus Law Group, APC
“Fortunately, in family law, there are not a lot of legal research challenges, as we follow the family code, which is easily available. Some of the challenges come from civil litigation challenges like Discovery.
The most common research challenge, in general, is access to resources to search for cases/statutes. So, solo or small firms do not often pay for Lexis or Westlaw that give attorneys access to large databases.
So, you have to improvise. You can start with Google and then you can follow up with smaller research tools like Casetext, or some other limited research tool just to check the law and make sure it’s the most recent.”
6. Continuing with the same approach
Brady McAninch, Partner at Hipskind & McAninch, LLC
I operate a small firm in Bellville, IL, a suburb of St. Louis, MO. My partner and I used to work at a large civil defense firm prior to starting our own practice. The large firm afforded us anything we could have wanted in research options. Since we have gone out on our own, we have had to change our approach as many of our clients are now unable to absorb those research costs.
As a result, we have leaned heavily on Google and other free searches. This allows us to narrow our searches when we do use payment services. Last fall, we had a case going to trial that involved a variety of difficult legal issues like whether under insurance coverage would be available to our client, and at what amount.
Whether the expert put forth by the other side should be allowed to testify given his limited experience in the areas at issue. What seemed to be a standard car accident case became a research nightmare. But, again, our client could not absorb a lot of costs, so we started searching for all the issues on Google.
This would typically give us a case or two that would be illustrative and help narrow our searches. Then we would use CaseText and Westlaw, CaseText to locate the cases and Westlaw to make sure the cases remained good law. The combination of these approaches allowed us to get the right law at a price that our client could handle.
7. Not doing brainstorming while researching
Jonathan Negretti, principal of Negretti & Associates- A Personal Injury Law Firm Based in Phoenix
“It is not uncommon to face a variety of legal issues that are novel to your case. At Negretti & Associates, we take a team approach for tackling these issues.
Many of these issues are issues of the first impression, so legal research won’t reveal anything substantive that can actually be applied to your case. In round-tabling these issues, we like to think outside the box when it comes to legal research.
For example, sometimes, we start with a simple Google search. You would be surprised at how much good usable information can be acquired from Google. We also subscribe to multiple member based list serves.
These list serves are a collection of attorneys that share best practices and comment on a variety of legal issues. We do have access to the more traditional legal research platforms like Lexis, but those end up being our last resort, not the first place we go when it comes to legal research.”
8. Not opting for electronic databases
An attorney Michael McCready of McCready Law
“Access to legal research is not a problem given electronic databases and search capabilities. A bigger challenge is using technology for investigative purposes. We consider social media searches as legal research.
We access proprietary databases for asset searches, skip traces, etc. We make frequent use of FOIA requests all in the name of strengthening our clients’ case. The biggest challenge today may be information overload!”
9. Not improving tactics with time
Cade Parian, Personal Injury Lawyer of The Parian Law Firm, LLC
From 2012-2014, Cade was named a Georgia Rising Star by Atlanta Magazine and Super Lawyers Magazine, which is an honor given to less than 2.5% of practicing attorneys in Georgia. In 2014, Cade was also honored as a Top 40 Under 40 lawyer by the National Trial Lawyers.
Sometimes lawyers box themselves into the usual legal research options like Westlaw and Lexis Nexis. However, don’t be afraid to get your hands dirty. Head to the local library, used bookstores, or aimlessly search Google. You could find the silver bullet.
10. Not seeking external help
Tyson Mutrux, the Managing Partner of Mutrux Firm, L.L.C.
Tyson served on the executive board of the Bar Association of Metropolitan St. Louis Young Lawyers Division and later served as a Delegate to the American Bar Association.
Legal research itself is not typically that difficult. For small firms, what makes it difficult is the expense. Large firms typically pay more money for better research capabilities, which is something small firms are unable to do.
This gives large firms a distinct advantage because of access to more and better research. Another advantage that large firms have over small firms is the team of researchers they typically have the ability to enlist at will.
For example, during a jury trial a few years ago, the large firm had an associate attorney in the back of the courtroom. He was constantly researching and filing motions in the middle of the trial in an effort to exclude evidence.
As a small firm owner, this put us on our heels on several occasions because we had to respond without a team of associates at our disposal quickly.
These are some of the common challenges that lawyers and attorneys encounter, along with the right solution. I hope this piece of content proves to be helpful for you.