Vol. 40 No. 6
ByShawn G. Nevers
Shawn G. Nevers teaches legal research and is head of reference services at the Howard W. Hunter Law Library at Brigham Young University.
Pavlov’s dogs are famous for salivating at the sound of a bell. As you might remember, the reason wasn’t that the bell looked particularly appetizing, but that the dogs became accustomed to being fed when the bell rang. Eventually, the sound of the bell, even without the food, triggered a conditioned response on the part of the dogs, and voila, saliva.
In a way, legal researchers are like Pavlov’s dogs. We have conditioned responses that may affect how we research, especially with online searching.
Google made online searching so easy and ubiquitous that when we have a question, we head straight to the search box, often with little forethought. It’s a conditioned response. It’s just what we do. We search first and ask questions later.
This conditioned response to search first is evident in many law students. They receive a fact pattern with a legal question and head straight to the nearest legal database to run a search, as if they were searching for the nearest Chinese restaurant. Unfortunately, legal research isn’t quite that simple no matter what Westlaw and Lexis will tell you.
Online legal research is different from typical Internet searching and should be treated as such. Doing so will make you a better legal researcher and more valuable to your employer and clients. Following are a few tips to becoming a better online legal researcher.
Think and plan. A conditioned response occurs without conscious thought. So, the first thing we need to add is some thinking. Legal research problems are often complex and have many different angles. Before jumping right to searching, take a few minutes to contemplate the information you’ve been given.
Think about the parties and their relationship to one another. Think about all of the potential claims and defenses. Think about the relief being sought. You’ll often find that a few minutes of thought will provide you with search terms that weren’t obvious at first.
Thinking may lead to the realization that you don’t know enough to create a good search. While that may be discouraging, it’s useful information that can guide your research process, potentially leading you to a secondary source to help develop better search terms.
If you can think up some good search terms, take a few minutes more to think about their role in finding useful information. Which search terms are essential to your legal issue? Which ones are too fact-specific to be helpful in an initial search? What is the best combination of terms that are likely to produce desired results? Deliberatively constructing a search in this way will produce better search results and help you become a better researcher.
Resources. Effective online legal researchers understand the different resources they are searching and finding. This used to be easy. When all we did was print research, each resource looked different and had to be used separately. With online research, everything started looking the same and distinguishing them became more difficult. However, researchers still had to choose a database and so had to understand the sources before they could do much searching.
With the advent of WestlawNext and Lexis Advance, researchers no longer have to select a resource before they can search. While this may help you find additional materials, it puts the onus on you to really understand the resources you’ll be seeing. You may find a regulation, but do you know what a regulation is or how it operates? You may be faced with the decision to purchase an out-of-plan ALR annotation. Are you familiar enough with ALR to know if it will be worth the cost? Understanding the resources available to you and what they contain will help you make better decisions as you research.
Read and analyze. When faced with a number of search results, students often ask me if they need to read them all. The answer is a qualified yes. There are certainly ways you can narrow down your results by skimming through the documents themselves. However, once you have your list of results that appear relevant, you really must take the time to read and understand them.
I won’t lie. This is hard work, but it’s part of research and it must be done. Relying solely on a few phrases highlighted in your search results is trouble waiting to happen.
An attorney friend once told me that opposing counsel in one of his cases quoted language from a Utah case that cited an Oklahoma court. When my friend looked up the case, he found the relevant passage, but he also found that the Utah court said, “We disagree with the court from Oklahoma.” Opposing counsel had missed that important detail completely.
You can’t afford to engage in this type of “sound bite” legal research. Context is extremely important in the law and must be understood. Our online searching habits train us to examine small bits of information at a time. Effective legal research, however, requires us to understand search results more deeply.
Alternatives to searching. While we certainly are conditioned to search first, there are alternatives to searching that good online legal researchers use. If you’ve read this column before, then you know I’m a big fan of statutory and regulatory indexes and, secondarily, tables of contents. These tools can help you navigate the technical language of statutes and regulations and quickly point you to related sections.
Take this example. Say you’re working for a company that recently got into the business of manufacturing crash test dummies. You’ve been asked to find out what specifications are required by federal regulations for creating crash test dummies. You could run a search and plow through all the results, but you’ll save some time if you head to Westlaw’s RegulationsPlus Index.
Once there you’re quickly guided to the technical term “anthropomorphic test devices”—a term you probably didn’t think to include in your search. The index gives you all the major subsections (including “newborns,” “knees,” and “necks”) in one place. You can quickly link from there to explore everything you need to know.
Practice. Being a good online legal researcher takes practice. Law school is a great place to practice because Westlaw and Lexis, as well as other sources, are subsidized by your law library. Unfortunately, most law students don’t use this to their advantage.
Because there’s no bill to pay, most law students don’t worry about effective searching. I would argue that this harms you as a legal researcher because you’re developing bad habits—three years’ worth. When the day comes that you’ll be charged for your research, not only will you have not practiced being effective, you’ll have practiced being ineffective—and that may be hard to overcome.
If you practice effective search techniques during law school, including ideas presented here, you will be a better online researcher—not to mention less comparable to Pavlov’s dogs.