Progressive Legal Research

Transcription

1 Progressive Legal Research

2 CHAPTER 2 LEGAL RESEARCH PLANNING A. Introduction This chapter presents a model for a Legal Research Plan and discusses how to begin the legal research process. Many variations of legal research plans exist. The plan presented here is a basic plan that can be adapted as needed. A Prequel to the Legal Research Plan is also included, which will help you identify relevant facts and organize your thoughts before starting the plan. The first step in the Legal Research Plan is often the most difficult because it requires organizing relevant facts and creating a preliminary issue statement. Throughout law school, you will have significant practice in identifying and organizing relevant facts as well as creating issue statements. These skills will improve with time and practice. You will be learning methods for locating relevant, up-to-date laws. You will also learn about legal research tools that are used to retrieve the laws and legal commentary, as well as make sure that those resources are current. Additionally, you will learn how and when to use these tools and methods to conduct efficient, effective legal research. The culmination of all of these aspects of legal research is called the process of legal research. B. Preliminary Steps / Prequel to the Legal Research Plan The Prequel helps you gather information about the facts of your case before you begin your research. It identifies information you should elicit from your client or supervisor. It can also help you determine what type of work product is expected of you and the timeframe for the research task. The following chart, 23

3 24 Chapter 2. Legal Research Planning Prequel to the Legal Research Plan, is designed to help you get the information you need to execute the Legal Research Plan. Prequel to the Legal Research Plan 1 FACTS Parties Descriptive Words of Legal Issues, Facts, or Terms of Art Applicable Jurisdictions Time Periods Time Deadlines / Priority Objective QUESTIONS TO ASK Who are you representing? An individual? An organization? A corporation? What side are you on? What is their relationship (e.g., buyer/seller, landlord/tenant, etc.)? What terms are significant to the legal issue? Are there specific terms of art you should know that might help with research? Are there facts or issues that are irrelevant to the issue at hand? Where did the incident take place? Is the issue determined under state or federal law? Is there an issue regarding jurisdiction? Does research have to be done across more than one jurisdiction? What is the chronology of events? What time frame should be covered by the research? The past two years? Shorter or longer? Are there any statutes of limitations concerns for this issue? When are the results of the research expected (e.g., 24 hours, 3 days, one week)? Does this assignment take priority over any other one? How much time should be spent before reporting back to the supervisor? What argument are you trying to support? What are you trying to accomplish with this research? What type of document are you preparing? A legal memo? A brief? 1. Information in this section is a modified version based on the Research Interview table in Paul D. Callister, Time to Blossom: An Inquiry into Bloom s Taxonomy as a Hierarchy and Means for Teaching Legal Research Skills 102 LAW LIB. J. 207 (2010).

4 C. The Legal Research Plan 25 WHAT YOU NEED TO KNOW Billable Time / Costs Places to Start Presentation of Results and Work Product QUESTIONS How much time should be spent on the research before consulting a supervisor if nothing relevant is found? Which electronic services can be used? Has someone else in the organization done this type of research before that can be reviewed? What resources does the organization have that can be used? Is there a place your supervisor would suggest you start your research? What type of work product is expected? A memo? A list of cases? A brief with printouts of all accompanying cases? Should there be a regular check-in with the supervisor to inform them of progress? If so, by what method in person or via ? C. The Legal Research Plan This Legal Research Plan was created by the CUNY School of Law Legal Research faculty. As stated earlier, there are a variety of approaches to legal research plans covering many of the same steps we have outlined here. The Legal Research Plan STEP Step 1 Organize your facts and frame the legal issue. Step 2 Determine the jurisdiction. Step 3 Find and read relevant secondary sources. ACTION Organize your facts in the context of the 5 Ws (Who, What, When, Where, and Why). Create a preliminary issue statement. Think about factors that impact jurisdiction. Consider where the events took place and where the parties are located. Consider whether your case will be governed by federal or state issues. Read secondary sources for analysis and topic overviews, and note relevant primary sources discussed in the secondary sources.

5 26 Chapter 2. Legal Research Planning STEP Step 4 Find and read primary authority. Step 5 Update primary authority. Step 6 Examine additional primary and secondary authority. ACTION Generate list of statutes / cases / regulations. Determine whether you need to redefine your understanding of the legal issue or you need additional information. Determine whether the primary authority is current and whether it is still good law. As needed, after completing steps 1-5, revisit primary and secondary authority based on what you have learned. Use the primary and secondary sources you have found to find additional primary and secondary materials. After completing the Legal Research Plan, if you feel that crucial facts needed to answer legal questions are missing, you may have to conduct additional fact finding. If you reached a dead end, you may have to broaden your search or seek help from a supervisor, peer, or librarian. You will learn to use each step effectively as you progress through the book. Using the 5Ws to organize facts (Step 1) and generate search terms is explained in Chapter 4.B.1. The importance of determining jurisdiction (Step 2) so you can find mandatory authority was covered in Chapter 1, and jurisdiction is used throughout your research as you filter your search results. The different types and uses of secondary sources (Step 3) are discussed in Chapter 5. Chapters 6-8 cover primary authorities (Step 4) and how to update them (Step 5). Finally, after you ve learned how to effectively use the first five steps, Chapter 9 revisits the Legal Research Plan and discusses in more detail how it is used in practice, including how the process is not linear and often requires revisiting earlier steps (Step 6). The one part of the plan that is not discussed in much detail elsewhere in this book is how to create a preliminary issue statement, so we will explain that part of Step 1 here. D. Drafting a Preliminary Issue Statement After using the 5Ws in Step 1 of the Legal Research Plan to organize the information you obtained during the prequel, you need to draft a preliminary issue statement before moving on to Step 2. The issue statement should state the legal issue(s) in the context of any important facts in your situation. If you prefer, the issue statement can take the form of one or more questions.

6 D. Drafting a Preliminary Issue Statement 27 When you are just beginning your research you may not know exactly what the legal issue is or which facts are the important ones. That s ok, because this is a preliminary issue statement. The main purpose at this stage is to pull the information from the 5Ws into a coherent statement or question so you know what to focus your research on. The issue statement should include what you feel are the most important terms and concepts among those you identified using the 5Ws. These same terms and concepts will form the basis of the searches you create. When including terms describing the who in your issue statement, be sure to use words that describe the parties relationship to each other in the context of the issue (e.g. landlord/tenant, employer/employee, etc.), not their personal names. Avoid generic descriptions such as plaintiff and defendant if possible, as these will add nothing to your research. As you work your way through the Legal Research Plan and learn more about your problem, the preliminary issue statement you drafted will most likely need to be changed. Facts you initially thought were important might turn out not to be, while the opposite may be true of others. You may discover you need additional information to answer important questions that arise, requiring you to go back to your supervisor or client to gather more facts. You may learn about legal terminology that applies to your issue that you weren t familiar with when you started your research. All of these things will require you to modify your issue statement as it evolves through the research process. Additionally, these modifications will help you improve the accuracy of your searches as you edit them to incorporate the new information you ve learned. During the research process, it can be tempting to follow tangents that might apply to the area of law you re researching but not your particular issue. Keeping an eye on your issue statement will help you stay focused and identify when you re going down a path that is not going to be helpful. Another benefit of creating a preliminary issue statement and modifying it as you go through the Legal Research Plan is that once you ve completed your research, you will already have the basis of a good issue statement or question presented for the legal memo, brief, or other document that you re going to write.

7 CHAPTER 3 NAVIGATING ONLINE ENVIRONMENTS A. Introduction Until the late 1970s, nearly all legal research was conducted in print and the legal information was only as up-to-date as the most recent supplement that had been received in the mail. With the introduction of online legal research systems, attorneys were able to search and locate the text of cases, statutes, and other legal and non-legal material in databases that were updated daily. Online legal research systems revolutionized the process of legal research, and as time went on more and more content was added to these systems. Eventually, all primary law, most secondary sources, a large offering of practice material, and an extensive collection of historically valuable documents were made available to subscribers to these online legal research systems. Today, online searching is considered the primary method of conducting legal research, and legal employers expect their new attorneys to arrive on the job with strong online legal research skills. B. Fee-based systems: Lexis Advance, WestlawNext, and Bloomberg Law Lexis and Westlaw have been the dominant online legal research systems since they were introduced (Lexis in the late 1970s, Westlaw in the early 1980s), in large part because of their breadth of materials, advanced search options, and the accuracy and currentness of the legal information. Lexis Advance and WestlawNext are their latest legal research platforms, designed to provide a search experience that is similar to Google. Bloomberg Law is the newcomer competing with the more established systems. Become familiar with all three major legal research systems while you are in school. You are likely to develop a preference for one based on your own needs, but be sure to stay familiar with the other systems throughout your time in law 29

8 30 Chapter 3. Navigating Online Environments school. For example, a future employer may only subscribe to one of the three services, so knowledge of all three systems will work to your advantage in the event your favorite system is not an option. Your Legal Research course can only cover some of the features and content of each system, so make time to attend the additional trainings that are offered by the vendors during the year to learn more. You will find that each system has strengths that may appeal to you. 1. Features of Lexis Advance, WestlawNext, and Bloomberg Law Overall, the three systems are more alike than different when it comes to their collections of primary law materials and some of their search features. Below are some of the most important common features and differences to be aware of. Common Features All include primary law for all U.S. federal and state jurisdictions. All reported cases, current statutes and current regulations are available on each. All provide their own citators for updating primary law. All provide a large number of secondary legal and non-legal materials. All offer terms and connectors search options. All provide convenient ways to browse search results and search within them. All provide a system to save documents, include user notes about them, and organize them in online folders for multiple research projects. All allow viewing and accessing earlier searches. All organize their databases in multiple ways, including by jurisdiction, type of material and area of law. All can be very expensive to search. Differences Each system includes some unreported cases that the other systems do not have. Historical coverage of statutes and regulations can vary. Coverage of secondary sources can be quite different most treatises are exclusive to one system and coverage dates may vary for sources that are available on more than one system (such as law reviews). Only Lexis Advance and WestlawNext offer keyword searching. Using the same search terms may produce different results on different systems. There are some differences in terms and connectors search construction. Overall layout and format differ from one system to the next, reflecting different ideas on what users will find easier to navigate. Terminology used to describe the same or similar features can differ, such as Shepard s KeyCite and BCite for their citators.

9 B. Fee-based systems: Lexis Advance, WestlawNext, and Bloomberg Law Currentness of Information Primary law materials are very current and will generally be available online before they appear in print. Some primary law documents, such as U.S. Supreme Court opinions, are available on the same day they are released. Secondary sources are often no more current than the most recent print supplement. Each of the systems include a link to an information page that will include an indication of how up-to-date the content is. Sometimes individual documents (such as statutory or regulatory sections) will include information on when they were last updated. 3. Arrangement of Information All three systems are designed to allow users to search the entire body of the system s content without having to pre-select any particular type or source of content. All three systems do have topical arrangements of their content broken down into the major areas of the law. For example, if a user knows that their question falls into the area of labor and employment law, the user can pre-select to search only labor and employment content. If the jurisdiction is known, it is encouraged that users pre-select the appropriate jurisdiction, run their search, and then narrow their search results using filter options that appear either on the left-hand column on the screen (Bloomberg Law and WestlawNext) or via tabs above the results (Lexis Advance). Users can also choose to search only in specific content areas of a system if they have an idea of which sources will contain the type of information they are looking for. Once you become familiar with some of the content sources, you may want to pre-select them before running your search. Some documents can be found in multiple content sources. For example, a New York state criminal case will appear if you pre-select for a content source that contains all state and federal cases, or all state cases (but excluding federal), or all New York and federal cases, or all New York state cases, or still yet smaller content sources containing just criminal cases from New York or just cases from a particular court. 4. Searching Lexis Advance and WestlawNext were developed to give users a more Google-like search experience than the earlier research systems offered by Lexis and Westlaw (still available to users as Westlaw Classic and Lexis.com). They represent the latest advances in the companies ongoing efforts to make their research systems easier to use while obtaining more accurate results. However, using these systems effectively to do good legal research requires more than throwing the first few words that come to mind into a search box. This is discussed in more depth in Chapter 4. Bloomberg Law requires users to use terms and connectors when conducting all searches. Users of WestlawNext or Lexis Advance who want more control over the results of their searches can also use terms and connectors in the

10 32 Chapter 3. Navigating Online Environments regular search box, which will trigger those systems to search using terms and connectors instead of using the default keyword search engine. Terms and connectors searching is discussed in more depth in Chapter Costs Both Lexis Advance and WestlawNext are expensive legal research systems. Many law firms, government law offices, and legal non-profits have unlimited subscriptions known as flat-rate contracts that do not charge per transaction. These entities negotiate a monthly or annual contract price for searching and access to certain documents. Even with those negotiations, there are still many resources that appear in search results that are outside the scope of these contracts, and each of these individual documents are currently billed from $13-$250 each on WestlawNext (and a similar amount on Lexis Advance). In the absence of a flat-rate contract, Lexis Advance and WestlawNext bill users based on transactions. Users are charged $60 for each new search they enter and an additional amount from $13-$250 for each document selected for viewing, depending on the type of document retrieved. WestlawNext charges another fee from $16-$30 to print, download, or each document, but Lexis Advance does not charge this type of fee. WestlawNext also charges $7 for each citation checked in KeyCite, while checking citations in Lexis Advance using Shepard s is included as part of the document fee. Bloomberg Law only has flat-fee billing and does not charge per transaction in any instance. Some employers tell their attorneys what kind of contract they have so they are aware of the charges associated with their research. Even with a flat fee contract, you should keep in mind that efficient research skills are important because your time is also valuable and may be charged to your client by your employer. C. Commercial Alternatives to Lexis Advance, WestlawNext, and Bloomberg Law In recent years, a few alternative commercial legal information providers have emerged with specialized focuses that do not compete directly with Lexis or Westlaw like Bloomberg Law has. Some of these companies provide free accounts to interested law students who sign up. LoislawConnect, VersusLaw, Casemaker, and FastCase are smaller providers that offer fewer resources at a lower price. Some legal research start-up companies, such as Casetext and Ravel Law, are developing innovative new ways to search and analyze primary authority. Other providers focus on subject-specific resources or provide documents that fill gaps not covered by the major providers. HeinOnline, a service with a vast collection of scanned images of law journals, historical legal documents, and primary law resources, is a good example of the latter type of provider. The CUNY School of Law Library s Legal Databases page < cuny.edu/legaldatabases.html> provides links to all the online legal research

11 D. Finding and Searching Free Resources On the Web 33 systems the law school subscribes to as well as some free resources. Using the links on this page, you can access the subscribed databases from any computer on the law school s network, or from home using your library barcode number. D. Finding and Searching Free Resources On the Web To save costs, some attorneys start their research using free Internet sources. Although you are not likely to find the same level of detail and authority that is available through copyrighted secondary sources on a pay database, you often can get at least some background information on a legal topic before you go to a commercial database. The Internet is also very useful when trying to locate specific documents, including known cases. Cases you view on the Internet will not have the research headnotes and other tools that you pay for on a commercial site, but you can at least read the text of the opinions. However, when it comes to comprehensive searching on a legal issue and updating authorities, you still need to consult commercial print and/or electronic resources as part of your research process. In most cases, free Internet resources are useful as a supplement to commercially produced legal materials rather than a substitute. Additionally, you normally should not cite to a document on a website unless that is the ONLY location where it can be found (see section F. in this chapter for more information). Some advantages of using free websites for legal research: A huge variety of information is available. Some sites provide extremely current information. , discussion forums, blogs, and social media provide free access to experts. Some limitations of using free websites for legal research: It is not always easy to tell how current the information is. There are reliability issues: who is providing the information; is it accurate? Many sites provide information going back only a few years. The site may stop being maintained or go out of existence without warning. Rudimentary search mechanisms and poor design at many websites impede usability. When looking for a known document, organization, or other specific piece of information, a quick keyword search in a general Internet search engine such as Google is often sufficient to retrieve what you are after. However, there are other scenarios where a general search engine might not find what you need. For instance, a search may not retrieve proprietary copyrighted material that is not freely available or documents that are buried within databases that cannot be discovered by search engines. Free Internet resources can also lack the organization of paid resources, and may not offer vetted collections of resources on a topic.

12 34 Chapter 3. Navigating Online Environments About the citations to websites in this section Throughout this section you will see references to URLs (Uniform Resource Locators), which are often referred to as Internet or web addresses. URLs are enclosed by <angle brackets>, which are provided to help you distinguish the beginning and ending of the URL from any surrounding punctuation; do not include these brackets when entering a URL into your web browser. The CUNY School of Law Library Website In addition to providing general information about our library and its services, the CUNY School of Law Library website < library.html> has been designed to help CUNY Law students and faculty locate both free resources and those the library pays for. Most of the legal websites referenced in the rest of this chapter are organized and linked in appropriate places on the library s website. There are many more that you might find useful, so spend some time exploring our library s website when you can. 1. Search Engines Google has been the dominant general search engine on the web for the past several years. There is now only one real competitor remaining, Bing. Many other search engines exist, but most search the Google or Bing databases and provide the same results. Even Yahoo, which is now in partnership with Bing, no longer searches its own unique database of websites. No search engine comes close to tracking every web page in existence though, so if you are not finding something specific on Google, Bing would be your alternative choice as a general search engine with a large database of websites. Google and most other web search engines are designed to be easy to use, with no special search instructions required. However, do not forget that many search engines offer a link to advanced searching. Advanced searches can be used when a general search is pulling up too many irrelevant hits and you want more focus. Each search engine is a little different in what features or search options it offers in advanced mode, so be sure to consult any help screens if you want to use the advanced tools effectively. In addition to the large general Internet search engines mentioned above, the CUNY School of Law Library Internet Search Engines & Portals page < includes links to some more focused or subject-specific search engines as well. One search engine for finding law-related websites is LawCrawler. In theory, this search engine should give you more relevant results for legal research because it focuses only on collecting legal websites, however, your results may vary and you may still find in many instances that a general Google search works just as well or better. Keep subject-specific search engines in mind when Google is not working for you or you need a more focused result.

13 D. Finding and Searching Free Resources On the Web Searching the Deep Web Search engines compile their vast databases of websites largely by using crawlers that automatically discover and index the various pages and documents they find. Originally the capabilities of crawlers were limited to finding what was on the surface of the web, mostly those pages or documents in html or text format. The crawlers could not find documents in other formats, or those that could only be retrieved by searching a database on an individual website. In recent years search engine crawlers have gotten much better at finding documents contained in databases on websites and those in non-html formats such as.pdf,.doc,.xls,.ppt, etc., and you will often see these documents showing up among your search results. However, even with the improvements in search engine technology, there is still a massive amount of information available through the Internet that will not show up using a search engine. This is known by various names such as the invisible web, the hidden web, or the label we will use, the deep web. The main lesson to learn about the deep web is that just because something does not show up in your favorite search engine does not mean that what you are trying to locate is not accessible somewhere on the Internet for free, especially when it comes to finding individual documents, reports, etc. Starting with a search engine is a good idea, but you need to have an alternate plan when the search engine results are lacking. For example, if you know the document you are looking for was produced by a particular government agency or private company, go to the website of the entity and see if there is a list of publications or a searchable database there. 3. Web Portals When you want to find a group of websites on a certain topic, web portals that collect and organize website links can help. FindLaw is one example of a legal web portal. It is owned by Thomson Reuters, the same company that owns Westlaw. The consumer edition of the FindLaw site is designed so people with no legal training can use it. Findlaw also provides a separate free site for legal professionals. Several other web portals are linked on the Library s Internet Search Engines & Portals page as well, and there are many others on the Internet. Spend some time looking at the legal web portals and bookmark the ones you like best for future reference. 4. Government Websites All jurisdictions, federal and state, offer at least some current primary authority for free on the Internet. How much is available, how often it is updated, what search features are available, etc., varies widely by jurisdiction. The federal government tends to make a lot of information available online. Some states are also very good, while others (including New York) lag behind. Additionally, some private entities provide free access to primary legal materials such as Google, which

14 36 Chapter 3. Navigating Online Environments has gotten into the case searching business with its Google Scholar resource. Listed below are some collections of legal resources available on the CUNY School of Law Library s website. a. Federal Law The CUNY School of Law Library Federal Law and Government < page is located in the Legal Information Links area of the Library s site. Linked sites on this page are organized according to the branch of government they relate to, so there are separate categories for legislative, executive and judicial sites. The page contains a mix of free websites as well as paid subscriber sites that are only available to current CUNY School of Law students, faculty and staff. b. New York Law The CUNY School of Law Library New York State Law & Government < page is organized in the same manner as the Federal Law & Government page, described above. c. Other States The focus of the CUNY School of Law Library website is on New York and federal legal resources. Our website does have an Other States < cuny.edu/library/legal-research/other-states.html> page that contains links to some sites that collect resources for all 50 states. Those links can be used to help discover relevant legal information sites in other jurisdictions. 5. Sources of Secondary Authority There are many free, online websites that are secondary sources of the law. While a search engine such as Google will frequently bring you relevant websites, there are some other types of sites that are particularly useful as finding tools and secondary legal information sources. These include Google Scholar, law school or university special collection websites, online legal research guides, bar association websites, and legal advocacy organization websites. They can be good for giving you background information on a legal topic or leading to primary sources and/or additional secondary sources. Just remember that some of these websites are meant to advocate or critique a certain position or viewpoint, and may be biased or incomplete. Always remember the guidelines for evaluating the websites you find, discussed in the next section. You can find links to many free online secondary sources websites using the links in the Legal Reference section of the CUNY School of Law Library Legal Research Links page <

15 E. Evaluating the Websites You Find 37 E. Evaluating the Websites You Find Having a method for evaluating information on the web is emphasized in information literacy courses because much of what is published on the web does not go through the same vetting process that works from traditional publishers do. However, the same guidelines discussed here can be used to evaluate just about any type of information you find, not just resources found on the Internet. There are four main things to consider when evaluating the reliability of information found on a website: author/publisher, objectivity, verifiability/accuracy, and currency. Author/Publisher - As with print publications, knowing who is supplying or who wrote the information can lend weight to the authority of a source and can help you decide whether you should use or cite to it. As part of this evaluation, always check the URL indicated in the address bar to see what website is actually supplying the document; clicking on a link on one site can sometimes pull up information from a different site. The type of organization supplying the information can also be ascertained to some degree from the top level domain name suffix: <.gov> is used for government websites, <.edu> for educational institutions, and suffixes such as <.uk> indicate geographic location. Other domain name suffixes, however, are less reliable indicators. For example, <.org>, originally conceived as distinct from for-profit <.com> sites, could still be used by a commercial provider because there are no restrictions on who can apply for a.org domain. Similarly, <.com> sites do not necessarily always belong to commercial providers. Objectivity - Some sites strive to provide unbiased information, others make it clear that the information provided is meant to advocate a certain point of view, while still others go out of their way to hide their agendas. Information that appears on the surface to be objective may in fact be biased or inaccurate. Your own perception of the information provided may also be biased based on what you think of the provider, so assessing objectivity is not always as easy as it sounds. Verifiability/Accuracy - See if the page or document you are looking at includes citations to the sources of its information so you can verify the accuracy of what is being presented. For example, Wikipedia is often derided (particularly in the legal and scholarly communities) because the information found there can be written by anyone, but many of the articles provide citations in footnotes that allow users to do further research and assess for themselves whether the information is accurate. Currency - Legal information can go out of date quickly, so knowing when something was written or last updated is critical. Look for a last updated date or similar indication on the page you are actually viewing. Be careful about relying on general dates provided on a website though. For example, the fact that the homepage of a website has a copyright date that includes the current year does not necessarily mean that the other pages on the website are being kept up to date.

16 38 Chapter 3. Navigating Online Environments Using the four listed factors to assess the reliability of information involves judgment on your part. In an ideal research world, each web page would contain indicators of all of the factors, but more often than not, one of more of these things is not obvious from what s on the page. Is the fact that a date is not indicated on the page fatal to your ability to rely on it? If you are looking for current statutes or regulations and no updating method is provided, the answer would be yes, but for a secondary source it is just one factor to take into account and the information may still be useful. Similarly, a lack of citations to supporting sources in a commentary source will make it hard to verify assertions made by an author and distinguish how much of what is being written is merely the opinion of one person, but the information could still be helpful if used in the right way (e.g. as one of several sources of background information that you wouldn t necessarily cite to as an authority). The factors for evaluating information are also interconnected to some degree. Knowing who the author or publisher is may also tell you something about whether the information is objective or biased in some way. Knowing the author or publisher may also give you more or less confidence regarding the accuracy of the information being provided. When using websites for primary law research, look for information about the scope of materials available and how often they are updated. This information may be on the first landing page, or on a separate about, help, or FAQ page. If you are using any search mechanisms on a particular website you should also look for information about the search functions, especially if you need to use an advanced search. F. Citing Authority Obtained from Electronic Legal Research Services Much of the information you locate through electronic services will alsobe available in print format. Both the Guide (5th ed.) and the Bluebook (19th ed.) require that you cite the print format if possible. This is not as difficult as it might seem. Many electronic services provide all the information you need for a print citation, including page numbers. For cases, statutes, and other materials available only in electronic format, the following rules apply. This chapter does not contain complete explanations about citing cases, statutes, and other authorities. More information about citing each of these types of authority is included in the chapters devoted to those sources. 1. Cases Citations to cases available only in an electronic service are governed by Guide Rule and Bluebook Bluepages B4.14. The citation must contain the following four components: (1) the case name; (2) the docket number for the case; (3) the database identifier, which often includes the year, the name of the database, and the unique document number; and (4) a parenthetical containing the jurisdiction and court abbreviations and the full date. A pinpoint reference can be provided with at * and the page number. Here is an example:

17 F. Citing Authority Obtained from Electronic Legal Research Services Statutes Statutory provisions retrieved from an electronic database should be cited the same way print materials are cited, with additional information in the parenthetical indicating which electronic service was accessed and the date through which the service was updated. Electronic statutory citations are covered in Guide Rule 14.2 and Bluebook Rules 12.5 and Here is an example: 18 U.S.C.A. 2332d (West, WestlawNext through Pub. L. No , approved June 30, 2014). 3. Materials Available on the Internet Citations to information on the Internet are discouraged if the document is available in print form because of the transient nature of many Internet sites. If you are citing something available in both print and electronic form that you obtained from an electronic source, you will generally be required to provide the print citation, supplemented with additional information indicating the electronic source. In the Bluebook, information on Internet citations appears in Rule Rule provides general guidance on citing information available on the Internet. The rest of Rule 18.2 discusses how to construct different types of Internet citations. To cite a source available only via the Internet in Bluebook format, you must combine the requirements of Rule with those in The Bluebook does not provide specific formats for Internet citations to all forms of authority. In many cases, you will need to format the citation by analogizing to the rules applicable to similar print sources. Here is an example of a citation to an Internet news report:

18 CHAPTER 4 SEARCH TOOLS AND TECHNIQUES A. Introduction This chapter introduces you to common search tools, strategies, and terminology that will be used throughout this book. Later chapters will provide you with tools and techniques that are specific to particular types of legal research, such as statutory or case law research. The discussions in those chapters assume the general knowledge provided here. B. Generating Search Terms Regardless of which search tool you are using, you need to have some relevant search terms to start with. Selecting your terms should not be done casually. Carefully selecting your search terms will make your searches more efficient and effective so you don t waste time and money having to reformulate searches unnecessarily. Step One of the Legal Research Plan you learned about in Chapter 2 involves gathering and organizing your facts using the 5 Ws (asking who, what, where, when, why). This is done to help you think about the problem as a whole so you can begin to formulate a preliminary issue statement to begin your research. As applied to searching, you will not search for every term you identify in Step One, but any terms that are important enough to include in your issue statement should usually be included in your searches. Here are some ideas for using the 5 Ws to generate search terms and expand on them. Spending some time thinking about this before you begin searching will usually pay dividends in time saved later in the research process. 41

19 42 Chapter 4. Search Tools and Techniques 1. Start With the Facts Who? The parties involved and their relationship to one another, e.g., landlord and tenant; business partners; driver and pedestrian; husband and wife; tax evader and the IRS Also, non-parties like witnesses, bystanders, employees What? Physical, tangible objects Concepts that are intangible: e.g., personal reputation, sale, value of an idea/invention, emotional distress Where? Geographical: e.g., the corner of 52 nd street and 8 th Avenue Type of location: e.g., a supermarket, a church, an airport Jurisdiction: e.g., New York state courts versus federal courts (rather than providing search terms, this guides you on which jurisdictional filters you will use in online searches or which databases you will select to search) When? Not only the dates, but the sequence of events, e.g., in winter, tenant requested broken heating system be repaired; 15 days passed and landlord had not begun repairs; tenant withheld rent and put it in escrow awaiting repairs; landlord posted eviction notice yesterday for failure to pay rent Why? The parties motives or states of mind 2. Consider the Legal Issues What harm, from a legal standpoint, has occurred? What remedy or relief is available? What procedural issues may arise or at what stage is the case currently in? 3. Look for Alternative Terms 1. Broaden your set of terms: find synonyms (or sometimes antonyms) for the terms you have: a. WestlawNext and Lexis Advance s algorithm knows to look for synonyms to a limited degree for some common words, but it s a best practice for you to find synonyms and search for them yourself b. Different jurisdictions have different terms for the same thing, e.g., Restraining order / protective order / order of protection / order for protection / peace bond 2. Deepen your set of terms: express the legal concepts more abstractly or concretely: a. Widen the concept: petit larceny larceny theft b. Narrow the concept: homicide murder felony murder

20 C. Executing Your Research Plan: Searching 43 C. Executing Your Research Plan: Searching Once you have selected your terms you will need to decide where you want to begin searching. Whether you start in a commercial online service, in print, or using free websites, will depend on your judgment about which sources are likely to be good starting points. Step Two of the Legal Research Plan is important at this stage because you will want to select the jurisdiction and its specific resources whenever possible as you move through your legal research plan. Lexis Advance, WestlawNext and Bloomberg Law all offer ways to filter your results to find materials for a specific state or the federal system. If you are using print resources in a library, materials for different jurisdictions will be found in different areas of the collection. D. Traditional Print Search Tools 1. Index / Descriptive Word Index The original keyword search tool, indexes are often included in print sources, almost always at the end of the work. They are alphabetically arranged and are usually the first search tool used when conducting research in a print source. The quality of indexes varies greatly, with some including many terms as well as crossreferences for alternative terms, while others provide only a small number of terms and no cross-references. Some online versions of sources that are keyword searchable still include an index as an alternate finding tool, which can be helpful in identifying the parts of a source that include a significant discussion of a concept rather than seeing every mention of a term in a keyword search result. Figure 4.1 illustrates a print index page. 2. Tables of Contents / Topic Outlines Tables of contents appear at the beginning of a work and list its contents in a topical arrangement. Tables of contents are usually found in both the print and online versions of sources. Some legal sources contain two tables of contents that are split in two levels, the first outlining the broad topics contained in the work, and the second one showing a detailed view of all the subtopics within the broad topics, sometimes going as far as to list each individual section in each subtopic. Tables of contents are often used to supplement other research methods. For example, if you are doing a full-text online search and find a relevant section, it is always a good idea to look in the table of contents for other sections in the same area of the work that are also related to your research. Figure 4.2 illustrates part of a print topic outline. 3. Tables of Cases, Statutes, Regulations Some print sources include tables that identify where particular cases, statutes, or regulations are cited. Tables can be excellent tools when you know a

21 44 Chapter 4. Search Tools and Techniques Figure 4.1 Encyclopedia Index Reprinted with permission from Thomson Reuters/West, American Jurisprudence, 2d ed., General Index (2013) edition, p Thomson Reuters/West. particular primary source is important to your research and you are looking for discussions of that source. Figure 4.3 illustrates part of a print table of cases.

22 D. Traditional Print Search Tools 45 Figure 4.2 Encyclopedia Table of Contents

23 46 Chapter 4. Search Tools and Techniques Figure 4.2 Encyclopedia Table of Contents (Continued)

24 E. Online Search Tools 47 Figure 4.3 Table of Cases, By Name Another type of table is the conversion table. Conversion tables are helpful when, for example, you know a case name but do not have a citation for it, or you know the Public Law number for a statute but do not have a citation to its location in the statutory code. Tables are usually located at the end of the print source you are using. They are rarely included online because there are online search tools available that replace them. E. Online Search Tools Regardless of the system or type of searching you are doing, you should have a plan for researching your issue online: 1. Before going online, construct your search using terms and concepts from the preliminary issue statement you developed as part one of your legal research plan. 2. Choose the appropriate jurisdiction, and optionally choose the appropriate database(s). 3. Decide whether you want to use keyword searching or terms and connectors searching. 4. Enter the search you constructed before you went online into the search bar. 5. Evaluate your search results. All systems provide browsing methods that allow you to quickly see where your search terms appear in the documents and how they are being used. You can then use filters and other tools to broaden

25 48 Chapter 4. Search Tools and Techniques or narrow the result, if needed. If most of your search results are not relevant, consider reformulating your search. Perhaps you have left out an important term or included one that is not needed. 1. Keyword Searching Lexis Advance and WestlawNext are designed so that users can search without having to use any special search operators that some other systems require (see Terms and Connectors / Boolean Searching section below). Currently, Lexis Advance calls this natural language searching while WestlawNext refers to it as plain language. You can type in a question, an issue statement, or simply a few keywords and you will get a search result. How that result is retrieved is a mystery to the user as each system uses its own proprietary search algorithms to determine which documents in its database are most statistically relevant to the search entered. This is one reason that using the same search on Lexis Advance and WestlawNext can often produce a very different result. The results on both systems are in order of statistical relevance to the search entered. Neither system can determine legal relevance. That is up to you, so you often need to check beyond the first few documents retrieved to find legally relevant results. Using filters can help you obtain a more focused result (See Chapter 4, Section E. 3 Filtering Results). 2. Terms and Connectors / Boolean Searching The terms and connectors search method on Bloomberg Law, Lexis, and Westlaw is a form of Boolean searching, which you may have used as an advanced search option in other online research systems or search engines. In the early years of Lexis and Westlaw, terms and connectors was the only search option offered, and it has continued to survive even though keyword search options were developed many years ago. The reason for the longevity of the terms and connectors search option is it gives complete control over the search to the user, providing more precise search results than a basic keyword search. The results of a terms and connectors search must always meet the requirements of the search exactly. Good terms and connectors searches will retrieve most or all of the cases on your issue, while poor searches may include thousands of irrelevant cases or no cases at all. Success depends mainly on the skill of the user in constructing the search. Bloomberg Law requires the use of terms and connectors when searching for multiple terms, whereas it is an option on WestlawNext and Lexis Advance. However, whenever you use the search within results filtering option in Lexis Advance or WestlawNext to narrow a search result or list of citing references, you are required to use the terms and connectors search method if you want to look for multiple terms. Therefore, even if you mostly use keyword searching on those systems, at least some knowledge of terms and connectors is required to take full advantage of the filtering options. The rest of this section is meant as an introduction to terms and connectors searching rather than a comprehensive guide.