What do you mean by Legal Research?
Legal research is the process of identifying and finding information necessary to support legal decision making. It is generally the process of checking for a legal precedent that can be cited in a brief or at trial. Virtually every lawsuit, appeal, criminal case, and the legal process usually requires some amount of legal research. Legal research skills are of great importance for lawyers to solve any legal case, regardless of area or type of practice. The most basic step in legal research is to find a noteworthy case governing the issues in question. As most legal researchers know, this is far more difficult than it sounds.
A researcher's analysis of a case often begins in the initial research stage when he/she identifies the relevant facts and determines the legal issues that must be researched. As this analysis continues, it is further refined as they decide where, how, and what to search. When they find relevant legal materials, they must understand them and how they apply to the facts of their case in hand. This research provides a crucial analytical foundation that will aid them in their decisions for the remainder of the case. As we know there are various types of legal research, but depending upon the source, they can be divided as:
Primary Source– These are the laws that are binding upon the courts, government, and individuals.
Persuasive Primary Source– These do not have the binding effect but aid in explaining what the law is or should be.
Secondary Source– These sources are important as they point the researcher to primary sources of the law.
Seven tips on how to do legal research
Whether you are a Lawyer, a paralegal or a law student, Legal research if not done in an effective manner can lead to frustration, especially when there are insufficient statutory and case laws related to the case you are working on. This article identifies seven of the most efficient legal research strategies to make your legal writing process less time-consuming.
1) Identify the reason behind the legal notice
All too often, a legal researcher tends to read the fact pattern of their client's case and immediately starts blindly searching on Websites like Vakilsearch, Advocate Khoj, Manupatra and SCC, typing in all phrases that come to mind. Instead, what needs to be done is the researcher must ask the important question: “What is the client trying to achieve with this lawsuit?”
Once you identify the cause of action, you can then ask: “What are the legal criteria that either help or hurt my client?” The answers to those two questions will help you with your legal issue. With those terms in mind, you can then use that to plan your search phrase.
2) Narrow your jurisdiction
When a researcher first starts conducting legal research, he/she mistakenly casts too wide a net when it comes to jurisdiction. Desperate to find applicable law, they often look to states other than the appropriate jurisdiction to find relevant case law. Cases from other states can be persuasive authority. But it is important to keep in mind that a Persuasive authority holds little weight, so it should be scrapped from your search unless your superior tells you otherwise.
The only cases that hold a mandatory authority are Supreme Court Cases and it is important that the decisions are from the appropriate state matter. Federal cases from the corresponding circuit are also possible, but as those can be a bit trickier to apply, check with your senior or a colleague with experience to make sure they were applied properly.
3) Use Boolean search terms
A Boolean search is the most basic form of search process employed to find information on internet search engines or databases. It follows the most effective principles of searching on the web. Boolean searches include certain operators, namely: AND, OR, NOT and NEAR, which are used in sentences with other keywords while searching for information. For example, the search could be “Hotels” NEAR “Mumbai Airport”. This would restrict the search results to only those documents containing the two keywords.
Though this tip may seem silly, many researchers tend to write the full issue statement into the search box. The legal research websites, however, actually run more like Google and typical search engines than people realize. With that in mind, learning Boolean search terms will help you save time and yield more fruitful results.
For example, consider the following:
- If your issue reads, “Under Maharashtra law, can a property owner be considered negligent if a wild dog bites a guest on his property?”
- Then, your search phrase could state: “property owner” and “negligent” and “wild dog”
In this one search phrase, you target all 3 main aspects of the issue. If your results become too limited, then you can remove either the quotation marks or one of the terms. You certainly will not be able to become an expert in Boolean search terms overnight, but practicing is key and can help save a lot of time.
4) Know that helpful cases don't have to have the legal outcome you want
Many times researchers avoid using the appropriate case law because the outcome wasn't what the client wants. For example, you may avoid referring to a case where the defendant was found guilty if you are the defense attorney. This isn't the right approach and instead, it can be used to your advantage if you have the ability to distinguish such cases and maintain a sound argument. Your best-case scenario is where you are able to project that the client is NOT like the plaintiff or defendant of the relevant case law.
The analysis section of your brief allows you to draw the comparison. For instance, your sentences may read something like:
- “Unlike this case, our client _____”
- While in the cited case states that the complainant _____, our case is an example of_____.”
- “Despite the litigant in the cited case _____, we request the court ______.”
By showing how the fact patterns are different, you can indicate how the court needs to find a different verdict toward your client. However, it is important to make sure the laws are properly aligned. For example, don't compare a case that maps out the law on medical malpractice when your case pertains to labour law.
5) Find other cases with the help of the case you initially found helpful
The entire article could be written on this tip alone. It's probably the most helpful and often overlooked legal research tactic. Both Vakilsearch and Advocate Khoj offer legal research shortcuts that make a huge difference:
Even the cases that have negative treatment to the case you have in mind can still be used if you have the ability to distinguish the cases, as discussed above.
When you're reading a case in any legal research website, the cases listed as authority are hyperlinked. Skimming the hyperlinked case can be considered a good idea because if that case had authority for the one you consider a match, it may hold weight for your client's case as well.
Lastly, when you first look at a case on these research websites, there are headnotes that provide key legal points within the case. Make sure you view other cases that make use of the same headnote. If one headnote is on point, then a case with that a similar headnote is also worth a read.
6) Take the date into account, but don't obsess over it
As a thumb rule, it is important to remember that a more recent case is more preferable since newer cases often reflect the legal and societal changes that could affect the case law. However, if you stumble upon a case that matches your fact pattern and applicable law but it's 30 years old, don't panic. That may be your best option if your client's legal issue hasn't come up in recent years. Double-check to see the negative treatment of the older case to make sure it still holds good. If there aren't any red flags, that case is probably acceptable to use.
7) Know when to stop
Your supervising attorney would want you to do your “due diligence” when it comes to legal research. Typing in 3 different searches into the search box and then giving up won't win you any points. By the same token, spending 5 hours researching a fairly straightforward case is also a big mistake.
You can't view legal research as a treasure hunt. Many a time, you simply won't find the exact case law or statute you're looking for. When you feel as though you can't possibly look anymore, you probably can't. Make use of what you found and do the best you can to write your IRAC.
If possible, ask for another set of eyes. If it's a law college assignment, ask your mentor to take a look to see if you might have missed something. If you're a legal intern, ask your supervising attorney if you think you've done enough. You may feel frustrated or more so like a failure if you haven't found the case that will land your client a victory. But you must know that plenty of lawyers often struggle to find the right law and cases, too.
Using some of the above tips, you should be able to find even the most obscure and hidden cases that will help you and your client. While some paralegals swear that excellent legal research abilities are a gift; keep in mind that they can also be learned if you are willing to be patient and ready to invest time and effort to learn the resources to use and to review the case details until you determine the issues you need to research.