Legal Research Strategies for Civil Litigation and Appeals

From the co-author ofResearching Texas Law

1. Identify, Narrow, and Frame Issues to 1. Identify, Narrow, and Frame Issues to Identify Research NeedsIdentify Research Needs

• The skill of identifying, narrowing, and framing issues is critically important in preparing legal documents, and this skill is equally important in both trial advocacy and appellate advocacy.

• Counsel must usually conduct some initial legal research to identify the legal issues in a case, particularly at the trial level.

• Practice guides are often a good starting point for preliminary research at this stage because these trial guides can effectively walk the lawyer through a particular problem from its initial stages.

2. Map Out Research Needs in Advance

• Once an advocate knows the issues that will be the subject of legal research, he or she should identify areas that will likely require more time and effort.

• Many research tasks can be completed rather quickly, and an attorney can often complete these tasks at the beginning of the process to allow the attorney to focus on the more difficult aspects of the problem.

• Mapping out the research needs in advance also allows the lawyer to identify which aspects of the research may be more costly, such as a research task that may require the use of a more expensive database.

3. Take Advantage of Comprehensive Resources

• Several resources in legal research are comprehensive, meaning that the sources provide guidance from the initial stage of pretrial through the conclusion of the trial itself, and perhaps through the conclusion of the appeals process.

• These sources can be particularly helpful for an attorney in preparing an overall plan for the entire case.

4. Use More Focused Sources When Resolving More Difficult Issues

• Many sources are designed specifically to cover one aspect of civil litigation and appeals, such as pretrial, discovery, evidence, and so forth.

• These sources are often more useful to an advocate after he or she has identified the more difficult issues that will likely arise in a particular dispute.

5. Take Advantage of the Array of Resources

• Those conducting legal research in Texasshould take advantage of the array of resources that are available. Some researchers, particularly those who are inexperienced at conducting research, often focus too heavily on one specific source for every research problem.

• When that source fails to provide helpful information, the researcher may struggle because he or she has not considered additional sources that may provide more helpful guidance. It is good practice to identify starting points in the research process, but it is a more effective practice to identify a range of alternative sources in case the initial resource does not provide the information that the researcher needs.

6. Do Not Misuse Forms

• The form templates that are available in many practice materials can be quite helpful to an advocate, especially if an attorney does not have access to an extensive form file at his or her law office. However, these forms may easily be misused.

• A lawyer should consult a procedural checklist, if available, that can provide assistance in drafting a particular form, since portions of the language in a form template may not apply at all to a given problem. It is also critical for an attorney to verify that the information contained in the form accurately conveys the current language of the law, since it is always possible that the form may have been published prior to an amendment to the law upon which the form is based.

7. Keep an Eye on Costs

• Although online research systems unquestionably provide convenience to a legal researcher, use of these systems can often cause the attorney to incur unnecessary costs.

• It is important for an attorney to recognize when the use of these systems is the most effective means, both in terms of costs and in terms of time, of retrieving information. For example, assume an attorney has access to an online system through a flat-rate pricing plan but that none of the databases included on that plan cover federal legislative history.

• The attorney may have the option of accessing a legislative history database on its subscription service, incurring both charges by the minute and possible print charges. On the other hand, the attorney may be able to locate all of this information at no cost (other than time, of course) through a government website.