How to do legal research in 3 steps
Knowing where to start a difficult legal research project can be a challenge. But if you already understand the basics of legal research, the process can be significantly easier—not to mention quicker.
So, whether you are a student still in law school or a seasoned attorney with years of experience, having solid research skills is crucial to be able to craft a winning argument. This is why it is so important to know how to perform legal research, including where to start and the steps to follow.
Step 1: What is legal research, and where do I start?
Black's law dictionary defines legal research as “[t]he finding and assembling of authorities that bear on a question of law." But what does that actually mean? Essentially, it means that legal research is the process you use to identify and find the laws—including statutes, regulations, and court opinions—that apply to the facts of your case.
In most instances, the purpose of legal research is to find support for a specific legal issue or decision. For example, attorneys must conduct legal research if they need court opinions (that is, case law) to back up a legal argument they are making in a motion or brief filed with the court.
Alternatively, lawyers may need legal research to simply provide clients with accurate legal guidance. And in the case of law students, they often use legal research to complete memos and briefs for class. But these are just a few of the situations in which legal research is necessary.
Key questions to ask yourself when starting legal research
Before you start looking for laws and court opinions, you first need to define the scope of your legal research project. There are several key questions you can use to help do this.
What are the facts?
Always gather the key facts so you know the "who, what, why, when, where, and how" of your case. And take the time to write everything down, especially since you will likely need to include a statement of facts in an eventual filing or brief anyway. Even if you don't think a fact may be relevant now, write it down because it may turn out to be relevant later. These facts will also be helpful when identifying your legal issue.
What is the actual legal issue?
You will never know what to actually research if you don't know what your legal issue is. Does your client need help collecting money from an insurance company following a car accident involving a negligent driver? How about a criminal case involving the exclusion of evidence found during an alleged illegal stop?
No matter the legal research project, you must identify the relevant legal problem as well as the outcome or relief sought. This information will guide your research so you can stay focused and on topic.
What is the relevant jurisdiction?
Don't cast your net too wide when it comes to legal research—meaning, you should focus on the relevant jurisdiction. For example, does your case deal with federal or state law? And if it is state law, which state? You may find a case in California state court that is exactly on point, but it won't be very helpful if your legal project involves New York law.
Where to start legal research: the library or online?
In years past, future attorneys were trained in law school to do their research in the library. But now, pretty much everything from the library—and more—can be found online. And while you can certainly still use the library if you want, you will probably be costing yourself valuable time if you do.
When it comes to online research, some people start with free legal research options, including search engines like Google or Bing. But if you want to make sure your legal research is comprehensive, you will want to use an online research service designed specifically for the law, such as Westlaw. Not only do online solutions like Westlaw have all the legal sources you need, but they also include Artificial Intelligence (AI) and other tools that can help make quick work of your legal research.
Step 2: How to find relevant case law and other primary sources of law
Now that you have gathered the facts and know your legal issue, the next step is knowing what to look for. After all, you will need law to support your legal argument, whether you are providing guidance to a client or writing an internal memo, brief, or some other legal document.
But what type of law do you need? The answer: primary sources of law. Some of the more important types of primary law include:
- Case law, which are court opinions/decisions issued by federal or state courts
- Statutes, including legislation passed by both the U.S. Congress and state lawmakers
- Regulations, including those issued by either federal or state agencies
- Constitutions, both federal and state
Searching for primary sources of law
So, if it's primary law you want, it makes sense to begin searching there first, right? Not so fast. While you will need primary sources of law to support your case, in many instances, it is much easier—and a more efficient use of your time—to begin your search within secondary sources such as practice guides, treatises, and legal articles.
Why? Because secondary sources provide you with a thorough overview of legal topics, meaning you don't have to start your research from scratch. After secondary sources, you can move on to primary sources of law.
For example, while no two legal research projects are the same, the order in which you will want to search different types of sources may look something like this:
- Secondary sources: If you are researching a new legal principle or an unfamiliar area of the law, the best place to start is secondary sources, including law journals, practice guides, legal encyclopedias, and treatises. They are a good jumping-off point for legal research since they've already done the work for you. And as an added bonus, they can save you additional time since they often identify and cite important statutes and seminal cases.
- Case law: If you have already found some case law in secondary sources, great, you have something to work with. But if not, don't fret, you can still search for relevant case law in a variety of ways, including running a search in an online legal research service like Westlaw.
And once you find a helpful case, you can use it to find others. For example, in Westlaw, most cases contain headnotes that summarize each of the case's important legal issues. These headnotes are also assigned a Key Number based on the topic associated with that legal issue. So, once you find a good case, you can use the headnotes and Key Numbers within it to quickly find more relevant case law.
- Statutes and regulations: In many instances, secondary sources and case law will list the statutes and regs relevant to your legal issue. But if you haven't found anything yet, you can still search for statutes and regs online like you do with cases.
Once you know which statute or reg is pertinent to your case, pull up the annotated version on Westlaw. Why the annotated version? Because the annotations will include vital information such as a list of important cases that cite your statute or reg. And sometimes, these cases are even organized by topic. This is just one more way to find the case law you need to support your legal argument.
Keep in mind, though, legal research isn't always a linear process. You may start out going from source to source as outlined above, and then find yourself needing to go back to secondary sources once you have a better grasp of the legal issue. In other instances, you may even find the answer you are looking for in a source not listed above, like a sample brief that was filed with the court by another attorney. Ultimately, you need to go where the information takes you.
Step 3: Make sure you are using “good” law
One of the most important steps with every legal research project is to verify that you are using “good" law—meaning a court hasn't invalidated it or struck it down in some way. After all, it probably won't look good to a judge if you cite a case that has been overruled or you use a statute that has been deemed unconstitutional. It doesn't necessarily mean you can never cite these sources; you just need to take a closer look before you do.
The simplest way to find out if something is still good law is to use a legal tool known as a citator, which will show you subsequent cases that have cited your source as well as any negative history, including if it has been overruled, reversed, questioned, or merely differentiated.
For instance, if a case, statute, or regulation has any negative history—and therefore may no longer be good law—KeyCite, which is the citator on Westlaw, will warn you. Specifically, KeyCite will show a flag or icon at the top of the document along with a little blurb about the negative history. This allows you to quickly know if there may be anything you need to worry about.
Some examples of these flags and icons include:
- A red flag on a case warns you it is no longer good for at least one point of law, meaning it may have been overruled or reversed on appeal.
- A yellow flag on a case warns that it has some negative history but not expressly overruled or reversed, meaning another court may have criticized it or pointed out the holding was limited to a specific fact pattern.
- A blue-striped flag on a case warns you that it has been appealed to the U.S. Supreme Court or the U.S. Court of Appeals.
- The KeyCite Overruling Risk icon on a case warns you that the case may be implicitly undermined because it relies on another case that has been overruled.
Another bonus of using a citator like KeyCite is that is also provides a list of other cases that merely cite your source—it can lead to additional sources you previously didn't know about.
Perseverance is key when it comes to legal research
Given that legal research is a complex process, it likely comes as no surprise that this guide cannot provide you with everything you need to know.
There is a reason why there are entire law school courses and countless books focused solely on legal research methodology. In fact, many attorneys will spend their entire careers honing their research skills—and even then, they may not have perfected the process.
So, if you are just beginning, don't get discouraged if you find legal research difficult — almost everyone does at first. With enough time, patience, and dedication, you can master the art of legal research.