One of the worst experiences as an attorney is realizing that a vital authority is missing from your legal argument. Your case appears weaker and incomplete as a result, and – worst of all – the omission may directly lead to an adverse result in the matter.
Given the peril associated with incomplete legal research, it’s clearly important to ensure that your research is as comprehensive as possible. But how can you do that?
Although different circumstances may warrant their own appropriate strategy, the vast majority of the time, you can ensure that your legal research is sufficiently thorough by asking yourself four questions during your research endeavors.
Are my authorities up-to-date?
This question is listed first because it is arguably the most important one. After all, the newest cases and laws are the ones you’re most likely to have missed during your research.
How can you tell whether you have found the most current authorities? There are a few different places in Westlaw to check.
First, and perhaps most obviously, you may sort all of your searches to display the most recent cases at the top of your results. This allows you to parse through the newest cases first and work chronologically backwards from there.
Next, the latest cases can be found by navigating to the “Cases” content from the Westlaw homepage and then selecting the jurisdiction or jurisdictions most relevant to your case. The ten most recent cases will be listed first, and you may further search for specific terms within this jurisdiction (also with the option to display the most recent decisions first in the search results).
Third, you may likely be able to discover whether any of your primary sources have received any negative treatment from other such sources by checking on whether the sources has any KeyCite status flags. These flags may sometimes relate to issues that aren’t relevant to your specific case, but more often, you can usually find valuable additional authorities by exploring these flags – specifically those authorities that have impacted the ones you’ve already researched.
Finally, Westlaw Bulletins & Topical Highlights provides an excellent resource for finding the newest cases on a variety of topics – the only downside being that only a limited number of jurisdictions are covered.
Are there any relevant secondary sources?
Most of the time, you shouldn’t cite to secondary sources as being authoritative in your legal arguments. That doesn’t mean, however, that they aren’t a phenomenal resource for helping to locate and process pertinent primary sources.
And Westlaw certainly has no shortage of quality secondary sources that cover both general knowledge to get you up to speed and also go deep into a specific question. Law reviews and journals can be useful for delving deeper into a specific issue. American Law Reports and Restatements of Law help not only in understanding the basics of a particular subject, but also pointing to important cases on the topic related to your specific jurisdiction. And 50 State Surveys may provide effective insight into where your jurisdiction stands in relation to others on a particular matter. And of course, let’s not forget state practice guides and handbooks too for researching state-specific questions of law.
The full extent of secondary sources available on Westlaw can’t be fully discussed in the limited space here, but they are definitely something to look to in the course of your research endeavors.
Have I explored applicable key numbers?
The West Key Number System represents the most comprehensive indexing system for case law issues. No legal research on Westlaw is complete without an examination into the system – an examination that is almost guaranteed to reveal additional sources to support your case.
There are two different manners of combing through key numbers. The first is to locate a relevant headnote in a case that is related to your legal matter. By clicking on any of the key numbers to the right of the headnote, you can access a number of cases containing headnotes within that key number – and you can limit the list of results to your own jurisdiction, as you could any other search.
Alternatively, you may explore the content directly from the Key Number System page, either by using the standard Westlaw search at the top, or by browsing directly through key numbers. While this method isn’t as direct and may be more time-consuming, you are more likely to catch cases that may have somehow fallen through the cracks of the other research method above.
The West Key Number System ties all cases in Westlaw’s massive database together by their distillable issues. By knowing how to navigate the system, it’s no exaggeration to say that one could find virtually all cases relevant to a particular issue within a jurisdiction.
As such, the system is an indispensible tool in any research process.
Have I let Westlaw help me?
Westlaw has made strides towards implementing machine learning in a number of services – some recently added – that can allow Westlaw itself to be helpful to your legal research.
The first of these is “Research Recommendations.” The name says it all: recommendations for documents and Key Numbers relevant to your search. These recommendations appear on the side of the screen of your search results page, and may include sources that you may not have yet considered.
Next is an enhancement germane to the very topic of this article: “Folder Analysis.” This feature analyzes your research folder’s contents, identifies the legal issues therein, and sorts the folder by these identified issues. Based on this analysis, you may see suggestions for additional cases pertinent to each identified issue.
Finally, although perhaps not a part of Westlaw in the strictest sense, Reference Attorneys exemplify the epitome of “help” in the Westlaw world. Available via telephone and through live chat via Westlaw, Reference Attorneys are available 24 hours a day, seven days a week, and can assist you “at any stage of your legal research” – including locating content.
If a Reference Attorney can confidently tell you that your legal research is complete, you can safely bet that it is, indeed, complete.
Admittedly, this all may seem like a lot to do whenever you’re doing legal research on a specific issue. Actually, though, there are likely several elements described herein that you’re already doing, and more that wouldn’t represent a significant burden to integrate into your existing research processes.
By and large, these questions for yourself are aimed at raising your own awareness of the resources available on Westlaw and how to find them efficiently. The more familiar you are with the content, the more confident you can feel when your legal research truly is complete.
About the author
Jeremy Byellin is an attorney practicing in the areas of family law and estate planning. He lives in the Minneapolis area with his wife, who is also an attorney, and his two sons and daughter. In his spare time, he enjoys running and being outdoors.