This is the third and final part of my legal research analysis to help you become a proactive researcher. Just to recap, the first-part of my legal research analysis addressed knowing the what before the where to your legal research. In other words, that part addressed knowing the exact call of the question and where to inquire to obtain the answer to that question. The second-part addressed the techniques in using field and segment search methods with Westlaw’s Terms and Connector search operators.
This final part of the legal research will address how to use the mini-search tools within cases to conduct quality skimming of the case in about a minute while preserving research efficiency and productivity throughout the process.
The mini-search tools, highlighted above, help you isolate the key words or phrases, anticipate counterarguments, and make persuasive arguments using controlling and or persuasive cases in your string cites. These mini-search tools do not all have to be used, but if they are to be used, then it is best to use them in the following order:
- Word or phrase searches
- Negative treatment searches, then
- Citing references searches
The reason to use these mini-search tools in that respective order is because you want to avoid going down rabbit holes and want to maximize your time vetting cases that are most suitable to your inquiry. Second, if the case you seek to use has been treated negatively, which will almost always be the case, then you want to know what were the basis of such a treatment. More specifically, you want to see if the basis for your use of the case is the reason for which the case was treated negatively. This will help you craft counterarguments to further solidify your point.
Finally, the citing references search will help you provide some basis that might support your counterarguments based on the negative treatment of the case you seek to use. The third mini-search tool requires some proficiency with the Terms and Connectors search methods mentioned in the second-part of my research process.
When using the word or phrase search tool, it is imperative to keep in mind what exactly it is that you are seeking to search. This is where the first-part of my research analysis comes into play. When the first-part of the research analysis is done right, you will know precisely what words or phrases you want to search for when you have reached this part of my research analysis.
For example, when searching for Ala. Code § 6-5-102 which deals with the suppression of material facts, the key words or phrases to consider would be: obligation, communicate, fraud, arise, confidential relations, and particular circumstances. (The words or phrases were taken directly from the language in the statute). These key words or phrases would be part of the “what” before the “where” which I was referencing in the first-part of my legal research process.
In the image below I have highlighted the words and phrases I will want to search for using Westlaw’s Terms and Connectors operators.
The Terms and Connectors most helpful in word or phrase search are root expanders and universal characters along with the use of quotation marks (“”) for word phrases. Also, keep in mind, there is no need to use commas (,) since the computer recognizes that spacing the words assumes you are seeking an inquiry to a different term(s).
Once you have input those words and phrases into the word and phrase search mini-tool, then you simply need to click “search” for those words and or phrases to be highlighted throughout the enter document. In the images below you will see portions of the document that have been highlighted from the words or phrases search inquiry.
Also note, because Westlaw saves these word or phrase searches, you do not have to constantly rewrite them when you are opening up another document. Moreover, you are not confined to using words or phrases found in a single issue, you can add multiple different issues you are seeking inquiry on into a single search. A useful tip would be to write down your mini-search tool list on a separate document then copy and paste it into Westlaw.
Finally, a point of import, when you become proficient in using my legal research process, you can skip step two in certain circumstances and directly dive into the third-part of my research process. This skip is illustrated in the images above because the statute is highlighted in addition to the word and phrase search made within that document.
To help you construct counterarguments, you will want to use the Negative Treatment search tab. In the images below you will see certain number of cases that have disagreed with the holding on the case you are seeking to cite. Here, it is important to pay attention to the depth of the holding and the headnote(s) that is being disagreed on.
Although the issue we were seeking to use the case for is not being disputed in any of the cases I have provided in the images above, it is helpful to see what that disagreement might look like. The image below provides a very helpful tip when practicing in the real world: read and understand the case you are seeking to use to present in your arguments.
I do not know the circumstances that led the attorney to use this case to support their contention, but one reason that could explain their choice is that (s)he did not conduct a thorough legal research. Moreover, and at times might be the case, the argument you are seeking to make is scarcely adjudicated in your jurisdiction, which would mean you have to find ample support from other primary persuasive authorities.
This is where the third mini-search tool becomes a source of great import.
The Citing References tab becomes your most useful tool when you want to use a perspective widely supported in other jurisdictions except yours or to support counterarguments that arose from the case you are seeking to use. In the Citing References tab you will mainly want to use the “Search within results” option.
Before you do use this option, it is best to be proficient with Westlaw’s Terms and Connectors search techniques mentioned in the second-part of my legal research.
Here, it is important to know what issue(s) you are seeking inquiry on. In other words, this tool should be used with the intention of seeking a specific result that is expressly or impliedly supported by the case at hand. Once you know what that is, then you can conduct your search.
However, you must use the jurisdiction filtering options only after you have conducted the search. The reason being is that many cases will provide support for the search you are seeking, but are not within the jurisdiction you want. This alone should not preclude a case from being used, because that case might be supported by another case in your jurisdiction.
The images below illustrate how beneficial the “search within results” tool is in providing you with the desired for results.
The search result dramatically cut down the number of cases pertaining to my specific inquiry. This search inquiry is even more rewarding when a particular case is cited well over 50,000 times. When that is the case, the precision of your search inquiry using Westlaw’s Terms and Connectors mentioned in the second-part of my legal research analysis really becomes gratifying. Thus, it is important to familiarize yourself with the entirety of my legal research process.
In making use of the results from your search inquiry, you have two main options to choose from:
- Supporting your counterarguments or
- Supporting a premise impliedly or expressly made in the case you are seeking to use.
The case in the image below illustrates how a persuasive authority could be used to garner support for an argument that might otherwise be difficult to obtain in your jurisdiction. This is not to say there is no case in the current example’s jurisdiction (Alabama) to support the contention the image below captures, but to solely illustrate how using the third mini-search tool option can help find cases that provide support for an argument you are seeking to make.
I hope to see you use my three-part legal research process in your summer clerkships and into the real world. If you know someone that might benefit from my legal research process, please do share it with them. And if you have any questions regarding my three-part legal research process, feel free to connect with me via LinkedIn.
Also, if you would like me to write about researching on other platforms or would like to know how to research a particular feature on Westlaw, just provide your thoughts by commenting below.