Selected Legal Research Treatises
Selected Legal Writing Treatises
Basic Approach to Legal Research
There are many approaches to legal research, and there is no single or best way to conduct legal research. Methods vary according to the nature of the problem and depend on the researcher’s subject expertise, research skills, and availability of particular research materials. It is best to construct a systematic approach to legal research that can be modified and applied to most problems. Below is one approach to legal research:
1. Identify and Analyze the Significant Facts
2. Formulate the Legal Issues to Be Researched
3. Research the Issues Presented
--Excerpted below from Steven M. Barkan et al., Fundamentals of Legal Research (9th ed. 2009).
STEP 1. Identify and Analyze the Significant Facts
The process of legal research begins with compiling a descriptive statement of legally significant facts. Factual analysis is the first step in identifying the legal issues that will be researched. Factual analysis also enables a researcher to locate access points to the available resources. Which volumes are relevant? Which subjects should be consulted in indexes and tables of contents? Which words should be used in an initial search of a database?
Inexperienced legal researchers might tend to skim over the facts and immediately begin researching. No productive research can be done outside a particular fact pattern. Most controversies are over facts, not law; and cases are most often distinguished on their facts. Rules stated by courts are tied to specific fact situations, and they must be considered in relation to those facts. Because the facts of a legal problem control the direction of research, an investigation and analysis of facts must be incorporated into the research process. Taking the time to identify relevant facts and writing them down in some narrative form is usually a worthwhile investment of time and energy.
The TARP Rule - A useful technique is to analyze facts according to the following factors:
T - Thing or subject matter;
A - Cause of action or ground of defense;
R - Relief sought;
P - Persons or parties involved in the problem.
Thing or subject matter. The place or property involved in a problem or controversy may be important. Thus, when a consumer is harmed after taking a prescription drug, the drug becomes an essential fact in the dispute.
Cause of action or ground of defense. Identify the claim that might be asserted or the defense that might be made. For example, the cause of action might involve a breach of contract, negligence, intentional infliction of emotional distress, or some other legal theory giving rise to litigation.
Relief sought. What is the purpose of the lawsuit? It might be a civil action in which the party bringing the suit is seeking monetary damages for an injury, or an action in which a party is asking the court to order another party to do a specific act or to refrain from doing a specific act. Alternatively, the litigation may be a criminal action brought by the state.
Persons or parties involved in the problem: their functional and legal status and relationship to each other. The parties or persons might be individuals, or might be a group that is significant to the solution of the problem or the outcome of the lawsuit. Similarly, the relationship between the parties, such as exists between husband and wife or employer and employee, might be of special importance.
STEP 2. Formulate the Legal Issues to be Researched
The goal is to classify or categorize the problem into, first general, and then increasingly specific, subject areas and to begin to hypothesize legal issues. For example, is this a matter of civil or criminal law? Federal or state law? Does the litigation involve contracts or torts, or both? If torts, is it a products liability or a negligence case? Problems are often not easily compartmentalized; problems can fall into more than one category, and categories affect each other.
Get an Overview. To assist in formulating issues, it is useful to consult general secondary sources for an overview of relevant subject areas. These sources can include national legal encyclopedias, a state encyclopedia, treatises, looseleaf services, or one or more subject periodicals or journals. It is wise to start with the most general and work to the more detailed and specific. These secondary sources can provide valuable background information and can direct a researcher to issues and to primary sources.
STEP 3. Research the Issues Presented
Organize and Plan. Develop a system for taking and organizing notes. For each issue, decide which sources to use and the order in which sources should be examined. Maintaining an accurate list of sources consulted, terms and topics checked, and updating steps taken prevents inefficient uses of time and omission of crucial information.
Identify, Read, and Update All Relevant Constitutional Provisions, Statutes, and Administrative Regulations. This provides the framework on which the rest of the research is built. These primary sources can be identified in several ways.
- Statutory Compilations. These include tables of contents and indexes listing the subjects and topics covered by the statutes.
- Secondary Sources. Encyclopedias, treatises, looseleaf services, and law review articles, commonly cite relevant constitutional provisions, statutes, and administrative regulations. Depending up on the scope of the inquiry, secondary sources that focus on the law of one state or on federal law may prove especially valuable.
Identify, Read, and Update All Relevant Case Law. After relevant constitutional provisions, statutes, and administrative regulations are identified and read, case law that interprets and applies those forms of enacted law, as well as other case law that is relevant to the fact situation, must be located. Do not limit research to cases that support a particular position. A competent researcher anticipates both sides of an argument and identifies cases that result in contrary conclusions. In many situations, the same case can be interpreted to support both sides of an issue; the argument may involve the question of whether the holding is to be broadly or narrowly applied, or whether the facts of the cases can be distinguished. It is common, however, for sides to argue that entirely different lines of cases are controlling.
Because no two cases are exactly alike, it is unlikely for a researcher to find cases with identical fact patterns to the situation at hand. The most relevant judicial opinions come from the same court or superior appellate courts in the jurisdiction in question, as they are the only cases that are potentially binding. Next in importance are judicial opinions, which might be persuasive, from other courts and jurisdictions dealing with similar facts, statutes, and issues. Even if binding, authoritative cases are located, persuasive authority from other jurisdictions might support an argument, particularly if the opinions are from well-known and respected judges.
Refine the Search. Secondary sources can be used again here to refine the search and expand the argument. Treatises, law review articles, and restatements of the law are not binding authority, but they can provide ideas on how best to utilize the primary sources.
STEP 4. Update
Law changes constantly. Legislatures pass new statutes and modify old ones. Each appellate court decision creates new law, refines the law, reaffirms the law, or changes the law, and researchers must be aware of the most recent decisions on the subject they are researching. Therefore, citations services, such as KeyCite (Westlaw) and Shepard's (Lexis), should be used to update the status of cases, statutes, and regulations.
When To Stop Researching
The question of when to stop researching is a difficult one. With experience, researchers develop insight into the point at which further legal research is unproductive. In many instances an obvious repetition of citations or absence of new information suggests that enough research has been done.
Whenever you are using a print resource, stop to see whether the source is updated with pocket parts in the back of the volumes. Almost all legal resources are updated on a regular basis with a pocket part or supplement. If a pocket part becomes too large, it is often published as a separate soft bound supplement. If you don't see a pocket part at the back of the volume, look on the shelf next to the volume for a separate supplement.
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