Legal Research Rules for New Paralegals
Using the DISPUTE Method of Understanding Legal Issues and Questions in Legal Research
Legal research can be a daunting process for the new paralegal. The fear of not completely understanding the legal research process can lead to anxiety and the prospect of missing crucial information related to the client’s case. The following tips will help you create and maintain a system for obtaining the surrounding information and correct law for each and every case that you manage.
Tips for New Paralegals in Legal Research
The most important step that you should take as a paralegal when you are preparing to conduct legal research for a case is to understand the legal issue and questions, which surround the client’s case. For this step, it is recommended that the use of the research method acronym “DISPUTE” be implemented as a tool to facilitate this process.
By using this method, you will be able to acquire all of the relevant information necessary to identify the legal issue and questions generated by the case and to conduct your research without missing any information. In short, it will help keep you organized and on point. Work through these acronym letters to satisfy finding all of the legal issues and to answer all of the questions involved with the case prior to beginning your legal research:
(D)id you identify all of the relevant parties involved in the case?
It is very important to know as much about each party involved in the case as you begin your legal research because the identities (including pattern of life, age, occupation, etc.) of the parties often have a direct impact on the case.
(I)s the location important?
Where did the event(s) take place? The location (or locus) could raise other issues in the case at hand such as a third party (such as a landowner) who may also be liable for the plaintiff’s damages. On the other hand, ask yourself, could the conditions of the location at the time of the event work to mitigate the defendant’s liability?
(S)ome items or objects may be important to the case.
For example, if a person used an object that was left unattended by the owner of that object to harm an individual or to commit a crime, you may be able to bring the owner in as a defendant if he had a duty to secure the item or make safe an area that the public had access to.
(P)ut the events in chronological order.
Have a detailed, chronological list for each event in the case. Understanding the events to include dates and times will give you the basis of action and the issues that are involved in the case. This is a crucial step because if you do not understand the legal claims or the issues involved in the action or lawsuit, you will not be able to provide relevant legal research to assist the attorney handling the case.
(T)ake into consideration the opposing counsel’s arguments in the case.
As you perform your legal research, you should be searching for laws and case law that will refute any legal basis the opposing party may claim to support his or her allegations.
(E)valuate the legal remedy or the relief sought in the case.
As a plaintiff, you must prove that you are entitled to the relief you are seeking through statutes and/or case law. As the defendant, you want to find a legal basis for the court to deny the plaintiff’s relief.
Synthesizing Your Legal Research
With the DISPUTE method used as the first step, you will have identified the issues and questions necessary to support the client’s case or defense. Afterward you should use the following steps to synthesize the legal research process necessary to gather the proper legal information so as to build the client’s case:
- With the legal issue in mind, ask yourself “what is the client trying to achieve with this lawsuit?”
Learn about the legal issue(s) or topic(s) involved prior to beginning your legal research. This is the one of the most important steps in conducting proper legal research. You cannot initiate legal research if you do not understand the legal topic(s) at hand. To do so you can access secondary sources of law to broaden your knowledge and fill in any gaps of understanding of the broad scope of the legal injury or defense you are familiarizing yourself with. The sources include:
- Law Review Articles: Law reviews are scholarly publications, usually written and edited by law students in conjunction with faculty members. They contain both lengthy articles and shorter essays by professors and lawyers, as well as comments, notes, or developments in the law written by students. Law review articles often focus on new or emerging areas of law and they can offer more critical commentary than a legal encyclopedia or American Law Report (ALR) entry.
- American Law Reports: American Law Reports (abbreviated and referred to as ALR) contain in-depth articles on narrow topics of the law. ALR articles, called annotations, provide background, analysis, and citations to relevant cases, statutes, law review articles, and other annotations.
- Legal Encyclopedias: Legal encyclopedias contain brief, broad summaries of legal topics, providing introductions to legal topics and explaining relevant terms of art. They also provide citations to relevant primary law and sometimes give citations to relevant major law review articles.
- Treatises: Treatises are book-length expositions on the law as it pertains to a particular subject. Treatises may be scholarly in nature, such as Blackstone’s Commentaries on the Law, or they may be geared toward a legal practitioner, such as a manual or handbook.
- Restatements: Restatements are highly regarded distillations of common law. They are prepared by the American Law Institute (ALI), a prestigious organization comprising judges, professors, and lawyers. The ALI’s aim is to distill the “black letter law” from cases to indicate trends in common law, and occasionally to recommend what a rule of law should be. In essence, they restate existing common law into a series of principles or rules.
- Online Resources: There are many online resources in addition to search engines which are legal specific. Consider such sites as: Guide to Law Online (The Library of Congress) which contains selected links to U.S., foreign, and international law resources located at (https://www.loc.gov/law/help/guide.php); and NOLO’s Free Dictionary of Law Terms and Legal Definitions (https://www.nolo.com/dictionary) are just a few of the resources available.
- Collect some basic information.
Before you search your state’s specific code or case law, perform a couple of simple searches to gather some basic information about keywords and/or relevant statutes. Run a basic Internet search for your topic on your favorite search engine and type in some keywords or phrases from your research topic or question.
For example, if you are trying to determine if a settlement agreement entered into in Pennsylvania can be modified as far as the spousal support your client agreed to pay, you may want to search “alimony in divorce settlement agreements” or “‘Pennsylvania divorce’ and ‘alimony.’” Skim the first page or two of results, looking for keywords, statutes, citations, or anything else that can help you answer your question.
A search of Google for “alimony in divorce settlement agreements” will returns results which seem to indicate that alimony can be modified.
The next step is to narrow, broaden, or re-word your search terms and search again. Based on the results of your original search, come up a new search terms that may provide more relevant results.
For instance, using the previous example, of “alimony in divorce settlement agreements” which returned results indicating that alimony in a settlement agreement can be modified, you can come up with the new search term, “when alimony cannot be modified.” Again, look for references to statues, citations, or additional keywords that may be helpful. This should be done through primary sources of law (outside of case law) which include:
- Statutes: Statutes (also called legislation) are laws enacted by legislative bodies, such as Congress and state legislatures.
- Regulations: Regulations are rules made by executive departments and agencies (Internal Revenue Code, etc.).
- Constitutions: The fundamental law, written or unwritten, that establishes the character of a government by defining the basic principles to which a society must conform; by describing the organization of the government and regulation, distribution, and limitations on the functions of different government departments; and by prescribing the extent and manner of the exercise of its sovereign powers.
- Look for an applicable statute.
Go to the annotated State or Federal Code and run a keyword search or browse for a statute that may apply. Annotated codes are state or federal compilations of statutes. Annotated codes contain references to cases that have interpreted the given statute.
If you have access to Lexis or Westlaw, you should have access to both the annotated and unannotated code, and you want to make sure that you are using the annotated version. If you do not have access to the annotated code for your state, ask your attorney for a subscription service, or an annotated codebook.
Freelance paralegals who find that subscription services are too expensive may consider visiting their local law library for an annotated codebook, or purchasing an annotated codebook for the states whose laws they most frequently research.
- Begin case law search.
Case law is defined as: “The legal principles enunciated and embodied in judicial decisions that are derived from the application of particular areas of law to the facts of individual cases,” and is the top primary source of law. Westlaw, Lexis or an alternate subscription service should be used if possible. You will begin this process differently, depending on whether you found an applicable statute, and whether that statute contained annotations or not.
It is important to know that up to 88% of federal case opinions and a large number of state case opinions are unpublished, for example, and you might have to search the local websites to determine if unpublished opinions have persuasive authority and can be used when relevant to the law of the case you are involved with (res judicata, etc.).
- If you found an applicable statute, with annotations, your case law research should start with any cases listed in the annotations of the statute. Freelance paralegals can use The Caselaw Access Project (https://case.law/) which is a free site which allows access to all U.S. official published case law from 1658 to June 2018.
- If you found an applicable statute, but it did not have annotations, your case law research should start with a search of the statute’s citation, in order to find case law that mentions that statute. If you did not find an applicable statute, your case law research should start with a keyword search. You may have to try a combination of keywords, search for occurrences of two different keywords close to one another (such as in the same paragraph or sentence), use legal topic designations to narrow your search, and/or run several different searches before you begin to get any relevant results.
- Always use Lexis’ Shepard’s or Westlaw’s KeyCite to double-check all case law. You need to be absolutely sure that your case was not overturned, reversed or remanded. You must have good law to support your case because you can be sure the opposing counsel will Shepardize/KeyCite each of your cases to make sure they have not been overturned and to see if there is any case law that directly contradicts the position of the judge in your case law.
- Actually read the cases you generate.
Pull up each case you come across, and read it. It is very important that you take the time to actually read the case, and not just skim it. Not only should you be looking for an answer to your question, but also for any citations to another case or statute that may answer your question, get you closer to an answer, provide you with new information that may help you narrow your search, or possibly send you in a new direction. You may have to read several cases before you start finding any that come close to what you are looking for.
Be familiar with the sources you are using. If you fail to familiarize yourself with your sources, you may not notice that the case digest you were using said “1990 to Present” was not the most current digest (it was current in 2010 when it was published), for example. Taking time to learn about your sources will help you avoid costly mistakes.
- Run a new search.
After reading several cases, and not finding an answer, go back and run a new search for different keywords, topics, or phrases, based on the information you have gathered reading cases from your first search. You may have to repeat this process several times before you begin turning up relevant cases that you can use.
- Repeat the procedure.
Keep reading cases, following links, and looking to further define your research topic or question with new keywords or phrases until you have narrowed down your search results to the point that you are finding the same answers are going in circles, being directed to the same cases over and over. You may even need to go back to step one and run a new Internet search with new keywords or keyword phrases.
Never stop researching until you are completely satisfied with the results. The take-away premise is to encourage you, the paralegal, to never cut corners in legal research and to always work to ensure that a vital piece of research that could seriously impact the case is never missed.
The Future of Legal Research
Currently, there are many changes being generated in the world of legal research due to the advances in Artificial Intelligence (AI). Trying to find a legal document through a Boolean search is now considered the “old way” of doing things.
The new platforms emerging as of the date of this article such as Lexis Advance will incorporate hyper analytics and visualization tools which, when merged with big data, will make legal research very user friendly along with a concentrated emphasis on speed and accuracy.
However, until that time arrives, the DISPUTE Method and ensuing tips referenced above should keep you in good stead when conducting your own research.
Written by Jeffrey Hauck, JD, CPO, CII, LPI