Tips for When the Going Gets Tough (or Stuck)
COLUMN > Write to Counsel
BY LAUREN E. SANCKEN
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I’ve driven a lot of unreliable, low-clearance vehicles over the years. My favorite car was my 1981 pale yellow Mercedes diesel station wagon with a back window that wouldn’t close all the way and a bit of moss stuck on the rusted grill of the front windshield. You could hear it before you could see it. I had a particularly good stretch of months in that car where I was either on the phone with AAA or my dad or walking to a neighbor’s house to get a jump start.
Because of that car, I know what it feels like to spin your wheels in the mud, in the snow, and sometimes just because you’re on a slight incline and it’s a Wednesday. But this is not a column about cars and actually spinning your wheels. It’s about how to stop metaphorically spinning your wheels when you’re researching and analyzing a legal issue.
The legal research “spin” can happen for a lot of reasons. Sometimes it’s because the answer to a legal question is elusive, even if countless sources have been amassed. Sometimes it’s because contradictory sources need to be reconciled. And sometimes it’s because the legal researcher needs more information but may not know it. The spinning feels agonizing and overwhelming when you are doing it, and it has happened to me more than a few times. But, thankfully, wise people helped me on my way. In that spirit, I hope these tips will help prevent other legal researchers from getting stuck.
RETRACE YOUR STEPS
Getting lost in legal research is a lot like getting lost in real life. You often need to retrace your steps to figure out where you took a wrong turn. If you have landed on several sources and none of them seems to be leading to an answer, it’s a good idea to go back to the research question. Sometimes on a quick first read, new legal researchers will miss something important. Just reading the question again can sometimes lead to better search terms (“Aha! This is about fair use, not substantial similarity!”). And better search terms can lead to better results.
But sometimes the question itself is vague and provides little direction—e.g., “Please look into whether our client can sell their maple syrup online.” Well, where are they selling it? Is it being offered for sale in all 50 states? Internationally? Will they obtain credit card information on their website? What is the syrup made of (is it 100 percent maple)? How is it packaged and labeled? In such a case, seeking more guidance and clarification from the client or assigning attorney will help you research efficiently and prevent the dreaded 50-state survey.
USE A MAP
Most people won’t drive to a new destination without the help of directions. I’ve certainly done it, but I don’t recommend it. That’s how you inadvertently end up in St. George, Utah, when you were trying to go to Moab. Before beginning any project, it is a good idea to follow a research process—a basic map that will lead you to useful sources of primary authority. Without it, you risk getting lost in thousands of search results and not knowing which are worthwhile—or worse, getting only a few search results that aren’t very helpful. You’re in the automatic spin zone when that happens.
Having a process also prevents procrastination and decision-making fatigue when you are tasked with a new question. You know what you need to do, and you can just start doing it, bit by bit. See the sidebar for one legal research checklist.
CHECK YOUR ENGINE
I recommend writing down a few key words and phrases to guide your research, unless you are very familiar with an area of law. These words and phrases should be terms about the facts, area of law, and jurisdiction. Perhaps the legal issue you’re researching is whether your client has any legal recourse against their neighbor for installing a giant princess castle playground structure that now blocks your client’s view. You don’t know much about property law except for what you memorized for the bar exam. So, to get started, you’ve written down “view,” “obstruction,” “property,” “playground,” “structure,” and “neighbor.” Hopefully, even without knowing what a “nuisance” or a “spite fence” is, you’ll eventually land on something that uses those terms so that you can get to sources with answers. If your search terms were limited to “princess castle” AND “legal recourse” you probably wouldn’t find a lot of helpful answers. In the early stage of the research process, be versatile with terms, use synonyms, and be open to adding new search terms as you’re learning about an area of law.
SOMETIMES YOU NEED A JUMP START
If you don’t know what you don’t know, secondary sources will jump start your research. Secondary sources are generally written by experts in a legal field and are regularly updated to include recent developments. Seeking out a treatise, law review article, or deskbook is a handy way to get an overview of a legal area and locate key cases and statutes. For instance, I frequently use the Washington Practice series for Washington law, Patry on Copyright, and Collier on Bankruptcy. Secondary sources lead to primary sources, and once you’ve found some primary sources, you’re on the research highway.
KNOW WHEN TO CALL AAA
If you’ve gone through the strategies above and still feel stuck, it’s a good idea to turn to someone else for help. Talking with colleagues is usually an efficient (and fun) way for me to get unstuck. By verbalizing where I’m getting tangled, I can often see the problem in a new light. In addition, a colleague will be able to ask me questions, identify something I hadn’t considered, and give me a fresh perspective. Two excellent lawyers in my old firm used to take laps around the hallways talking about their cases. They were moving sounding boards for their ideas, in addition to getting 20,000 steps a day.
In addition to finding a good sounding board in a colleague, a great place to go when you need outside help is a reference librarian. They are masters of legal research and can usually point you in the direction of good secondary sources and other resources quickly. They can also tell you where you’ve gone wrong. Finally, a more senior attorney or the assigning attorney is a good place to turn if you aren’t making progress. It’s a lot better to confess that you’re stuck and ask for help than to spend 10 hours on a dead end. Be prepared to explain your research process and results to them so they have the information they need to help assess your situation.
MAYBE YOU’RE NOT STUCK, BUT HAVE YOU ACTUALLY REACHED YOUR DESTINATION?
A question a lot of law students and new attorneys ask is, “How do I know if I’m done?” It’s hard to know when to stop researching, and it’s sometimes hard to know the difference between being stuck (e.g., there’s more out there, but you can’t get to it) and being done. If you have an answer to the question, you have primary sources for support, those primary sources have been updated and are still good law, and the sources all keep pointing back to each other, then chances are you’re done. Another way to test out whether you’re done is to try explaining your research process and results to someone else (ideally the assigning attorney). If they nod along in agreement, that’s usually a good indication that it’s time to park the car and call it a day.
Quick Legal Checklist
Here’s a basic research process, created by the law librarians at the University of Washington’s Gallagher Law Library:
- Create a list of key words and search terms.
- Do background reading in secondary sources if unfamiliar with the area of law.
- Use those secondary sources to locate relevant statutes and cases.
- Update authorities with a citing references tool to locate other authorities.
- Assess your results—anything good?
- Repeat as needed.11 See Penny A. Hazelton, The Process of Legal Research, in Penny A. Hazelton, Jonathan A. Franklin, Ann Hemmens, Mary Ann Hyatt, Peggy Roebuck Jarrett, Nancy M. McMurrer, Cheryl Rae Nyberg, and Mary Whisner, Washington Legal Researcher’s Deskbook 23 (3d ed. 2002). Available at: https://digitalcommons.law.uw.edu/faculty-chapters/14.
Chances are, if you follow these steps, you’ll be able to navigate out of the mud. Most legal research checklists offer similar step-by-step guidance,22 See Legal Research Strategy Checklist and other guides generally, https://guides.library.harvard.edu/law/researchstrategy. See also Marsha L. Baum, “Ten Tips for Moving Beyond the Brick Wall in the Legal Research Process,” 10 Perspectives: Teaching Legal Research and Writing 20-22 (Fall 2001) Available at: https://legalresearch.usfca.edu/ld.php?content_id=22965977. and having one of these taped on your desk will likely prevent a lot of spinning.
1. See Penny A. Hazelton, The Process of Legal Research, in Penny A. Hazelton, Jonathan A. Franklin, Ann Hemmens, Mary Ann Hyatt, Peggy Roebuck Jarrett, Nancy M. McMurrer, Cheryl Rae Nyberg, and Mary Whisner, Washington Legal Researcher’s Deskbook 23 (3d ed. 2002). Available at: https://digitalcommons.law.uw.edu/faculty-chapters/14.
2. See Legal Research Strategy Checklist and other guides generally, https://guides.library.harvard.edu/law/researchstrategy. See also Marsha L. Baum, “Ten Tips for Moving Beyond the Brick Wall in the Legal Research Process,” 10 Perspectives: Teaching Legal Research and Writing 20-22 (Fall 2001) Available at: https://legalresearch.usfca.edu/ld.php?content_id=22965977.