research strategies & tactics
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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
d
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
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