Research Strategies & Tactics -- Creighton Miller

Take-Aways:

1) Research Is a Process 2) Whenever Possible, Cheat!!!! 3) Time Is Money, But So Is Money

Research Is a Process

One Search Does Not Equal Research or

The Needle-in-a-Haystack Fallacy

“One page from one jurisdiction may be exactly what that attorney is looking for that allows them to win the case. And, if they can't find it, [we] haven't done [our] job.”

-- Rick King, Chief Technology Officer for Thompson Reuters (aka “West”) discussing WestlawNext.

(See http://www.geeklawblog.com/2011/08/theres-one-page-in-one-jurisdiction.html)

Research Hypo: P suffered significant injuries in an automobile accident caused by an uninsured motorist. P’s insurance carrier has accepted its liability under P’s uninsured motorist coverage, but refuses to pay that portion of P’s medical expenses that will or should be covered by Medicare. What, if any, recourse does P have against the insurance carrier?

Kinds of Research

Known Item Fact Concept Issue

Complexity

The Legal Research Process I. Receive Information

II. Identify and Analyze Significant Facts

III. Formulate Legal Issue(s)

IV. Get an Overview of the Subject Area

Research Specific Issue(s)

VI. Update!

Why Waste Time With an Overview of the Subject Area?

• Context & Background – Valuable Details – Overarching concepts – Framework – Avoid “rabbit holes”

• Terminology • Citations

– Seminal sources

A Taxonomy of Legal Research Sources

• Primary Sources – “The Law”

• Constitutions • Statutes • Cases • Regulations

• Secondary Sources – “About the Law”

• Treatises • Legal Encyclopedias • Law Review Articles

• Finding Aids – “Tools”

• Digests • Indexes • Citators • Search Engines

Potential Sources for Legal Overview Info:

• Treatises & Hornbooks – Jurisdiction-specific or General

• Legal Encyclopedias • (Some) Law Review Articles • Bar Journal Articles • Websites • Digests • People

Print or Online

Known Item Fact Concept Issue

Complexity

Ove

rvie

w N

eede

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How Much of an Overview?

How Much Information?

Characteristics of Useful Information: – Authoritative – Credible – Current – Authentic

Find Something Find Everything

Whenever Possible, Cheat!!!!

Stating the Problem Precision: the proportion of relevant documents found

to total documents found; a measure of how accurate a search is

Recall: the proportion of relevant documents found to relevant documents available; a measure of how complete a search is

Precision

Recall

Maximize Recall = Minimize Precision

Maximize Precision = Minimize Recall

Research Strategies

Find Something Find Everything

Research Tactics

Tactic Difficulty Example

“Blind” Search Hard 1) Full-text search on Westlaw/Lexis; 2) Google search; 3) keyword search in a library catalog; 4) use Descriptive Word Index in a West digest

Use Finding Aids to find something similar to a source you already have

Moderate 1) Topic & key number search on Westlaw or topic search on Lexis; 2) “Similar” search on Google; 3) subject search in a library catalog; 4) use a known topic & key number in a West digest

Find citations in a source you already have

Simple Click on a hyperlink or look up a source by citation

How To Cheat at Research

A Useful Source You’ve Already Found

Tools in Sources • Citations

• Cross-References

• Annotations

Indexing Tools • Digests

• Library Catalogs

• Indexed Databases

• Other Finding Aids

Other Useful Sources

Use cases from other jurisdictions and secondary sources for cases of first impression, when jurisdictional authority is weak, or to argue for change in the law

Validate and Update All Sources •Shepards’ or Keycite •Check ALL cases, statutes and regulations

Find Relevant Legislative History •Note: Minimal or no legislative

history is available for many states

Use secondary sources for explanation or interpretation of unclear or complicated law

Find Similar Cases •Topic & key number system (digests or

Westlaw) • “More Like This” function on Lexis •Shepards’ or Keycite

Read the Statutes or Regulations •Use annotated version for cross-

references and case annotations

Read the Cases •Print Reporters •Westlaw or Lexis •Web sources

Note relevant cases, statutes or regulations cited or cross-referenced in these sources.

Find Interpretive Cases •Case annotations •Shepards’ or Keycite •Cites in secondary sources

Search for Case Law Addressing Issue(s) •Cites in background sources •ALR annotations •Westlaw or Lexis search •Print Digests

Search for Statutes or Administrative Regulations Addressing Issue(s) •Cites in background sources •Westlaw or Lexis search • Indexes to codes (USC, CFR, state

codes, state administrative codes)

Read Background/Overview Information about General Legal Topic(s)

Stop When: • You find the “answer” • You are only cites to things

you’ve already read

The Value of Human Indexing Or

Why Reinvent the Wheel?

• Library Cataloging http://topekalibraries.info/search~S3

• Topic & Key Number System http://lawschool.westlaw.com/shared/westlawRedirect.asp?appflag=71.1&task=keynumber

Time Is Money, But So Is Money

Time Is Money…

• Average Billing Rates, Large Firms, 2009 (National Law Journal survey) – Partners: $457/hr. – Associates: $287/hr.

• Billable Hours • Write-offs

Efficient Use of Sources

• Know Your Sources • Use What’s Available • Prepare • Think Strategically • Use Expensive Tools When

Appropriate—but Don’t Get Addicted

Money Is Also Money

• Westlaw Pricing Guide for Private Price Plans (April 2010)

• WestlawNext Pricing Guide for Commercial Plans