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4.3 Doing Legal Research: Putting It All Together




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This article is from the Legal Research FAQ, by Mark Eckenwiler with numerous contributions by others.

4.3 Doing Legal Research: Putting It All Together

So you need to investigate a legal topic using all of these
tools. How do you put them together effectively?

First, if there's a treatise or hornbook on your subject,
look there first. Half the time, the source will give you a
clearcut answer, and save you the agony of reinventing the wheel
and doing all the case/statute research yourself. (But make SURE
you look in the pocket part -- this can't be stressed enough.)

Suppose the issue is more complex, and you want to delve
deeper. Note the cases, statutes, and rules mentioned in the
treatise, and go look them up. (Of course, you can begin the
research process here if you start off with a citation to some
case, statute, or rule.) For each one of these, you have several
routes for locating additional materials:

a) Your case etc. will likely cite other cases etc. which are
themselves relevant. Repeat the recursive process for these
sources.

b) If your new source is a case, Shepardize it for later-decided
cases citing it. Look especially for later cases where the
Shepard's listing includes a headnote number that corresponds to
the important textual passage in your case.

c) If your new source is a case, note which headnotes (in front
of the opinion) seem to address the issue you're interested in.
You can then go to **Federal Practice Digest 3d & 4th (FPD),
which contains summaries ("squibs") of other cases under that
same heading/key-number combination. (For state law research,
you would use the relevant state digest instead, e.g., NY Digest
3d & 4th.)

Make a note of the cases whose squibs look useful, and set them
aside to be looked up later. When you get to them, you'll repeat
steps a) and b) above; in addition, these new cases may include
helpful discussions under a different West heading/key-number,
in which case you'll recursively repeat step c).

d) If your source is a federal statute or rule (e.g., FRCP, FRE),
consult the appropriate volume of **U.S.C.A. containing that
rule. You'll find more case squibs relating to various aspects
of the statute/rule. Consult those cases, and repeat steps a)-d)
with them and the significant sources they discuss.

Suppose you didn't start this process by looking in a
treatise, or with a particular case in hand; rather, you think
there's general caselaw out there. Using the keyword index
volumes at the end of FPD (or your state digest), look up terms
that describe your issue. The index will generally provide you
with a list of heading/key-number pairs, which you can then use
starting with step c) above.

Or suppose you think there's a federal (or state) statute
that addresses the subject. You'd go to the paperback index
volumes of **U.S.C.A. (or your annotated state code) and look
under whatever seem like the appropriate headings. For instance,
to find the wiretap statutes, you'd look under "wiretap" or
"eavesdropping" to start. Once you locate the relevant statute,
proceed to step d) above.

Obviously, this recursive process could go on forever, since
every case, rule, and statute ultimately leads to every other
case etc. in the seamless web of the law. Use your judgment and
cull accordingly as your research progresses. New cases are more
persuasive than old ones; appeals court (and especially Supreme
Court) opinions are more important than district court decisions;
if you're before a particular district court, cases from that
court (and the courts directly above it) are the most
influential.

A useful guide to developing research strategies (and carrying
them out) is _The Legal Research Manual: A Game Plan For Legal
Research and Analysis_, by Christopher G. Wren and Jill Robinson Wren,
available at many law-oriented bookstores.

 

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