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Westlaw: There is research and then there is re-search

Legal Research

After completing my first-year in law school, none of my courses were as demanding and rewarding as Lawyering and Legal Reasoning—better known as LLR. Any rising 2L, 3L, or even 1L in their second semester will tell you the significance of LLR. After all, since law students are planning on becoming lawyers for the most parts, it only makes sense to master the skill that is the backbone to every attorney—the research.

While research is an integral part among other skills that yields a lawyer’s success, it is the only skill that every other lawyer’s skill depends on. In other words, research is the foundation that enables all successful lawyers to showcase their elaboratively well-structured legal skills for the world to marvel.

During my first-semester LLR course, I attended various LLR Bootcamp Training sessions—LexisNexis, Westlaw, and Bloomberg Law. Although there were three LLR Bootcamp Training sessions, only Westlaw is relevant here. However, prior to diving into the crux of this blog, it is best to provide a roadmap to the subject-matter and the scope to each part. Since I intend to break this blog into three parts, the first part (discussed herein) will be applicable mostly to any legal search engine such as LexisNexis, ROSS Intelligence, Bloomberg Law, etc. The three parts of the blog will be broken down into the following parts:

  • Part I: knowing the “what” before the “where” to research will help you become a proactive researcher. This part will focus on the steps required when approaching any new legal research assignment. This part will also contrast research approach taught currently in a number of LLR courses with the one I am proposing.
  • Part II: applying the compartmentalized, tailor-oriented approach to search inquires will maximize each search result. This part focuses on searching cases that try to replicate the fact pattern, the desired outcome in the sought for litigation stage, and any exclusionary term(s) that might make the case more dissimilar than similar to the fact pattern assigned. The aim of this section is to find controlling cases that address the heart of the matter while allowing the researcher to avoid constantly using the filtering option after each search result.
  • Part III: the mini-search tool allows for quality skimming of a case in about a minute while preserving research efficiency and productivity throughout the process. The aim here is to take a minute, two at worst (assuming the case is between 30-40 pages in length), to skim through the case by isolating the relevant parts of a case at a glance before committing yourself to reading it.

Because this is the final process of your case research, this last part enables you to go over nearly all of your search result in a period of 15-20 minutes.

While the other two parts will be discussed in future blogs, it is imperative to understand and execute each part seamlessly to truly reap the benefits of my research approach. Before diving into Part I, if you have any questions at any time, please feel free to connect with me via LinkedIn.

Part I: Knowing the “what” before the “where” to research will help you become a proactive researcher. To maximize your research results while decreasing your research time, it would be advantageous to understand and seek the answer to the call of the question using primary sources only.

Before diving into the research question, we have to ask ourselves the elementary question asked of all law students: What is the call of the question? Here, the call of the question will vary depending on the facts of the case, the substantive law governing the case, the procedural law governing the case, the jurisdictional basis of the case (both subject-matter and personal), and the appropriateness of the venue. Once these elementary factors to “what is the call of the question” are addressed with reasonable certainty, then seek to ascertain the “where” to the legal research process.

Here, the “where” will fall either under federal law or state law governing the facts of the case. There are, however, instances where both apply. Nevertheless, proceed to the “where” using its respective primary source (e.g., case laws, treaties, Constitution, statutes, and regulations) not secondary source (e.g., Restatement of the Law, legal encyclopedias, treatises, etc.).

Currently, a sizeable number of LLR courses (judging from both my law school and other law schools LLR course materials) and legal research diagrams online have expressed that secondary sources instead of primary sources is a useful starting point to conduct one’s legal research process.

Although secondary sources help provide clarity to a given legal topic, these sources detract valuable time, can possibly make the research process more inefficient, and do not provide a sound basis to support your legal argument to the same degree as primary sources. Thus, secondary sources ought to be the backup plan to the safety net and not the default safety net to any primary sources.

In other words, if the text in the primary source fails to provide clarity into the researched topic matter, which should be a rare occurrence, then try to seek clarity using texts in other sections in that same primary source; however, if and only if that too fails to provide clarity into the researched topic matter, then seek to gain clarity using secondary sources. Therefore, when researching a topic matter to an assignment, the goal is to both start and end with primary sources as the foundation to your legal research process.

When approaching primary sources, it is imperative to understand their respective hierarchical order. Part I of the research approach prioritizes a hierarchy to all of primary sources in the following order:

  1. Constitution, statutes, treaties, and regulatory codes;
  2. The “Notes of Decisions” section in each of the respective primary source document mentioned above; and
  3. Case law.

The hierarchical order to the primary sources allows a researcher to be proactive for three reasons.

First, the language in the order will guide the researcher to satisfy all of the substantive element of the governing law. Here, the goal is to parse the language necessary for a valid cause of action to withstand any motion from the opposing counsel.

Second, the argument structure will partly be guided by a foundation that the courts have found favorable. Although each case’s facts and issues will uniquely structure the arguments to be substantively different from other cases, that does not preclude the researcher to emulate the big picture rationale into each of their issues to write a winning argument.

Finally, by coupling the first two reasons, the researcher will be equipped with the most valuable tool known to any attorney—favorably controlling case. Here, there are either going to be cases that are favorable to your argument or not.

Notwithstanding favorability, these steps in Part I will undoubtedly make you an efficient, proactive, and meaningful asset that will increase your marketability to law firms.

Adil Khoso Adil Khoso is a rising 2L at Cumberland School of Law. His professional career has been blessed with setting a company record in a company that has been around for over three decades to starting a successful company despite the overly-saturated market.