Module 1.

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The Process of Legal Research
Reading

Welcome to your first legal research class! This module will introduce you to the process of
legal research. Let’s get started by reviewing the learning outcomes for this module.

By the end of this module, you will be able to:

• Describe the stages of the legal research process.

• Articulate the reasons for using a research checklist to keep track of work.
• Describe the elements of a preliminary analysis.
• Create a preliminary analysis based on a fact pattern.
• Summarize methods used to determine when a given legal research task is finished.

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The Process of Legal Research Is NOT Linear

The process of legal research is not a linear one. The visual diagram below is one illustration
depicting the circular and repetitive nature of legal research. Although the steps are
numbered, your starting point can vary depending on what information or law you have been
given. For instance, if you have a relevant statute on the legal issue, you might start there.
Later, you will come back to investigate secondary sources for further information and conduct
research for additional primary law.
KEY point: Cover all the steps at some point during your research.

Image credit: S. Gotschall

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The 7 Basic Legal Research Steps

There are typically 7 basic steps to follow when conducting legal research. The order in which
the steps are taken may vary depending on:

• The information you know at the outset of your research. For example, you may have
been given a relevant statute (or case or regulation). You can start with them. On the
other hand, you may only have a few facts to begin with, which usually means starting
with secondary sources.
• The information you discover during your research process. One case you read may
lead you to a new relevant statute (or another case or a regulation), which you retrieve
and review.
• The scope of the project. Ask yourself, what do I need? Is this a large project that will
take days or weeks to complete? Or is it something that I can do in a day or a few hours?
How much time do I have to do the necessary research?

The 7 basic legal research steps are:

1. Create a research plan & use a research checklist.
2. Analyze the facts & conduct a preliminary analysis.
3. Conduct background research for overview & build on what you know about the
problem.
4. Search for primary law (statutes, cases, regulations).
5. Read & evaluate your materials.
6. Ensure your primary materials are good law & current.
7. Refine your analysis & formulate a conclusion.

Let’s look at each step one by one.

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Step 1 – Create a Research Plan & Use a Research Checklist

Why are these important?

• Provide guidance.
• Help you stay organized.
• Prevent repetition of efforts & not waste time.
• Ensure you won’t miss important steps.
• Useful when consulting with others about your research.

Developing a research plan and using a research checklist is especially important when you are
first learning how to conduct legal research.
Research plans may change or evolve as you research. A good legal researcher is flexible and
willing to reassess and revise as necessary.
A checklist does not have to be in any particular format. Start with a sample template and
adapt to your purposes over time.

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Step 2 – Analyze Facts & Conduct a Preliminary Analysis.

A preliminary analysis is basically the who, what, where, when, why of your legal issue. It is a
continuous process. As with your research plan, be prepared to reframe your legal issue as your
research progresses.

A preliminary analysis consists of the following 4 basic parts:

1. Relevant facts.
2. Relevant jurisdiction.
3. Key terms & phrases.
4. Legal issue statement.

The preliminary analysis is a key step in your legal research process. Let’s look more closely at
its specific parts.
Every legal issue comes with a set of facts. Your job is to assess which ones are relevant and
important. Sometimes, facts that did not seem important at first become important as you
research your legal issue. It takes practice to determine what facts are relevant. Be patient.
Determine the appropriate jurisdiction for your legal issue. You do not want to spend time
researching California state law when you needed to be researching Arizona state law. Similarly,
be aware when your legal issue is a federal issue. For example, bankruptcy law is handled in
federal courts.
To conduct a successful search for relevant legal materials it is critical to have a set of relevant
key terms and phrases that will return research results that are useful. You obtain these key
terms and phrases from the relevant facts of your case. You may need to think of alternative
terms. It is helpful to think about how the courts refer to legal terms and phrases when putting
this list together. Legal dictionaries and legal thesauri can be helpful.
The legal issue statement is the question you are trying to resolve and answer. Keep in mind,
you may have more than one legal issue to research. The legal issue statement is often put into
the form of a question. Here’s an example of a legal issue statement:
“Whether Monica Carpenter can sue Jess Masters for personal injury and premises
liability when she hit a large rock in the middle of the bike path on his property which
caused her to fly off her bike and sustain a several ankle injury.”

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Preliminary Analysis Example

Let’s run through an example. You have been asked to write a preliminary analysis for your
supervising attorney. She tells you the following:
The client, Louella Story, needs assistance in a Florida unemployment case. Louella was
employed at an alligator petting zoo in Lake City, Florida. Two weeks ago, Louella, while
handling the night shift, was responsible for assuring that all the alligators were secured
behind their gates overnight. Louella’s boss and owner of the petting zoo, Mr. Elroy,
insisted that employees clock out at the end of their 8-hour shift because he could not
afford to pay overtime. About an hour before the end of her shift, Louella took a smoke
break for about 10 minutes, something she’d done regularly since working at the petting
zoo, as have many of the other employees. When Louella returned from her break she
needed to feed the alligators, which required her to open the gates to the alligator
areas, throw in their food, and lock the gates. Unfortunately, Louella was unaware of
the new locking mechanisms on Humphrey, the most popular and oldest alligator’s gate
(she had never been trained on them). Louella had to hurry but managed to finish her
tasks and clock out right on time.
Mr. Elroy arrived to take over for Louella at the end of her shift. Mr. Elroy took care of
some work in his office for about 45 minutes and then went out to check on the
animals. To his shock, Mr. Elroy found that Humphrey had escaped out of the gate and
entered a nearby exhibit that contained a very large Burmese python named George.
Mr. Elroy found George coiled around Humphrey and the two were engaged in a
desperate struggle. With the help of arriving staff members, Mr. Elroy finally was able
to separate the two animals. Both animals survived the encounter, although they had
to be removed from display for the next few weeks while recovering from the ordeal.
Mr. Elroy is concerned that admissions will drop significantly without these two star
exhibits.
Louella was Mr. Elroy’s longest-term employee. She was constantly punctual and took
care of the animals like they were her own. Nevertheless, Mr. Elroy fired her the next
day. Louella filed for unemployment and was rejected by the Florida Dept. of Economic
Opportunity Reemployment Assistance Program. Mr. Elroy claimed he fired Louella for
misconduct because Louella failed to secure Humphrey’s gate and because Louella took
a smoke break.

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A preliminary analysis of the Louella Story fact pattern above might look like the following:
Relevant facts:
 These are facts you need to know to solve the problem.
 Keep in mind, not all facts are relevant; some may become more relevant, however, as
you go through the research process.

 Example: long-term employee with no problem before this incident; no training on the
lock; employees regularly took smoke breaks, but might need to determine whether
smoke breaks were permitted

Jurisdiction:
 Which laws will govern the action? Determining the jurisdiction will help you determine
where to search.
 Is it state law? If so, which state? Is it federal law?

 Example: state law; Florida

Key words/phrases:
 These are the terms/phrases you will use in your searches for primary and secondary
authorities.
 You may need to broaden or narrow your search terms.
 Look for possible “terms of art.”
 Legal dictionaries or legal thesauri may be useful.

 Example: unemployment; misconduct; workplace; discharge; burden of proof;

administrative procedure

Legal Issues/Concepts:
 These are the questions that need to be answered. You may have just one issue or
more than one.
 Legal issues are often put in the form of a question.

 Example: Whether Louella Story’s firing for not securing the alligator crate and taking a
smoke break amounted to misconduct connected with her work so that she would not
qualify for unemployment benefits.

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Step 3 – Background Research

If you are unfamiliar with a legal topic, Step 3 is especially important. In this step you locate
secondary sources on your legal topic.
Review these secondary sources to:

• Obtain an overview and background information on your legal topic.

• Obtain expert analysis and commentary on your legal topic.
• Identify additional key terms and phrases, including any “terms of art” (a word or
phrase that has a precise, specialized meaning, such as “double jeopardy” or “res ipsa
loquitur”).
• Locate citations to primary law.

We will talk more about secondary sources in a future class. For now, remember that secondary
sources are secondary authority – they are not primary authority. Secondary sources are any
type of writing ABOUT primary authority.

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Step 4 – Search for Primary Law

In this step, after consulting secondary sources, begin researching for relevant primary law in
the appropriate jurisdiction. Finding primary law is the ultimate goal of all legal research since
you need to cite to some law to support your legal argument.

There are multiple methods you can utilize to locate primary law.

• Use “Judicial Decisions” (a list of cases that have interpreted a statute).

• Read cases you’ve located to obtain citations to relevant case cited in the opinion –
sometimes referred to as the “one good case” method.
• Use the Shepard’s citator on Nexis Uni to update your case to find citations to relevant
“citing references” (cases that have cited to a case on point) for your legal issue.
• Run a keyword search to locate additional relevant cases, statutes, regulations.

We’ll investigate these methods more closely in future classes. Key point: there are many ways
to locate relevant primary law.

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Step 5 – Read & Evaluate

In this step you want to read and evaluate the materials you have collected during your
research. It is critical that you take the time to read carefully and thoroughly to understand
the legal issue.
Sometimes, a secondary source may fully answer your legal issue.
After reading relevant statutes, be sure to check surrounding statutory sections, including any
definitional sections. A statute does not stand alone. This is also true for regulations.
For cases, read the entire case. Do not skim or rely solely on the case synopsis.
As you read, look for possible additional search terms and phrases that you can add to your list.
Primary legal materials are often quite dense. For new researchers this can be frustrating. Be
patient. With time and practice you will be able to move through these types of materials more
quickly. A good secondary source, read in conjunction with primary materials, can help make
sense of what you are reading.

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Step 6 – Ensure Primary Law Is “Good Law”

You need primary law to construct a legal argument. Step 6 involves checking that the primary
law you have found and believe is on point for your legal issue is “good law.” This means that
your primary law has not been negatively treated – overturned, vacated, or superseded. This
process is often referred to as “updating.” Sometimes it is called “Shepardizing” or “KeyCiting.”

For statutes and regulations, check for recent amendments, proposed legislation, and currency.
For cases, verify the case has not been withdrawn or vacated or is pending appeal.

Using a citation tool such as Shepard’s on Nexis Uni is the only way you can ensure that your
law is good law. We will cover “updating” law with a citator (the Shepard’s citator on Nexis Uni)
in a later class.

Key point: You must always update your law to check on any possible negative treatment.

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Step 7 – Refine Your Analysis & Conclude

Refining your analysis: This step is not necessarily the end of your work! First review what you
have found to determine whether you have answered your legal question. Are you unable to
come to a conclusion? Did new questions come up during your research? If so, you may need to
refine your original analysis and go through the steps again.
If you find you need to refine your analysis, it is often helpful to return to secondary sources. A
good secondary source can help demystify complex legal issues and provide explanations that
aid your understanding after having read some of the primary authorities.

Writing a summary: If, however, you believe you have reached an answer, it is time to put pen
to paper (or finger to computer key) and provide a summary analysis of the law as it relates to
your legal question.
This may be an informal work product shared with colleagues in the office or something more
formal along the lines of an opinion letter to a client or a memorandum brief to the court.
A good basic starting point is to begin with an introduction of the legal question/issue and the
answer. Follow with discussion of the legal issue, incorporating supporting primary law with
citations. Finish with a brief conclusion and further steps to take, if any.

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Am I Done Researching … Yet?

One of the most frequent questions asked is “how do I know when I’m done with my
research?” It takes time and practice to get a sense of when you have exhausted all efforts. Use
the questions below to help make this determination.

• Have you completed all the steps on your research checklist?

• Have you used a variety of appropriate sources?
• Are you beginning to find the same information repeatedly as you go through the steps
on your research checklist?
• Does the information you have found seem to answer the question?
• Have you bounced your research strategy (and conclusion) off other people?
• Has the cost of researching exceeded its benefits?
• Have you run out of time?

Or, put another way, you will probably miss something important …

• If you don’t have a research process that guides your research strategy.
• If you don’t use a research checklist to guide your research and record your results.
• If you don’t use useful finding aids, such as indexes or tables of contents.
• If you don’t have familiarity with a variety of secondary sources.
• If you don’t master keyword searching.
• If you over rely on natural language searching (google-style).
• If you don’t take the time to READ the information you find.

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