One of the secrets to success in law school is knowing where to find an answer, and find it quickly. Lawyers aren’t expected to know the answer to every legal question, but they are expected to know where to find the answers.
Hours of legal research can be wasted if law students look in the wrong books. One key to success in law school studying and legal research is knowing where to look for an answer.
To find an answer quickly, a law student must (1) know the resources in a law library, (2) know which resource is best for a law student’s particular question, and finally, know how to use that resource.
I learned this approach from law review editors when I served on law review. I still use this approach as an attorney today.
Where to Start
Some law students start their research by searching cases in WestLaw. Normally this is a big waste of time. Law students can spend hours reading through cases that match a search criterion without ever finding a case that answers their question.
Although research should end by finding a primary authority (case or statute) that answers your research question, the best place to start is with a secondary authority or even at the reference desk.
Reference Desk. If you are not sure where to start your legal research, ask an expert. Reference librarians are paid to point law students in the right direction. Not only that, but most reference librarians enjoy this aspect of their job most. Ask the reference librarian how he or she would start researching your particular legal issue.
Secondary Authorities. Once you get the hang of legal research, you may want to skip the conversation with your reference librarian and go straight to the materials that the reference librarian will likely recommend: secondary authorities. Although each research project is different, the best approach is normally to start by using a secondary authority rather than primary authority.
What is a “Secondary Authority?” The answer to this question involves understanding the nature of a “primary authority.” A “primary authority” is simply a law. The law may be a statute, rule, or case established by a government authority. Unlike a “primary authority,” a “secondary authority” is legal reference material that is not the law. Secondary authorities include treatises, hornbooks, law review articles, legal encyclopedias, and potentially study aids.
Study Aids. Study aids are great way to get an overview of the legal concepts and terms involved in the area of law you want to research. Don’t rely on a study aid to give you an accurate legal rule for your jurisdiction, but study aids provide useful overviews of the law. After reviewing a study aid for a few minutes, you should have a general understanding of the concepts you need to research, and you should be able to make a list of the terms you want include in your research.
Hornbooks. Hornbooks are essentially short treatises. Hornbooks could also be considered advanced study aids. A Hornbook gives an overview of the law and cites to authorities (mostly cases) to assist in your legal research. Hornbooks are great for learning concepts.
Hornbooks are more comprehensive than study aids and, unlike study aids, Hornbooks provide citations to cases. However, Hornbooks are not as comprehensive as treatises, and while treatises may cite a number of cases or cases in each jurisdiction, Hornbooks have relatively few citations.
Legal Encyclopedias (Amjur). Legal encyclopedias allow you to look up a term or topic to find a quick explanation and possibly a reference to additional information about the concept. American Jurisprudence (Am Jur 2d) and Corpus Juris Secundum (C.J.S.) are two of the most popular legal encyclopedias. Legal encyclopedias can help law students quickly find legal materials on a topic.
Law Review and Law Journal Articles. Law review articles and law journal articles (hereinafter “law review articles”) are great for evolving areas of the law or when you find a recent article directly on your topic.
Law review articles are generally essays written by attorneys, law professors, judges, and law students on a legal topic. Law review articles can be hit-or-miss. That is, if you find a law review article on the exact topic you are researching, it can be invaluable. But you may not find a law review article on your topic.
Also, law review articles may be outdated. Once a law review article is published, it is never updated. This is unlike treatises, Hornbooks, and other legal authorities, which are normally updated.
ALR. A quick scan of the ALR index can help you determine whether an ALR article exists for your topic. American Law Reports, or A.L.R., are similar to law review articles. However, ALRs are occasionally updated, are often published by noted authors, and are often more comprehensive than a law review article. There is not an ALR on every legal concept, but when there is, an ALR can be wonderful. ALRs are most common on popular legal issue that have many cases on the topic.
Treatises. Treatises are a great way to learn about a topic and find some cases that relate to the topic. A treatise is a comprehensive analysis of a legal subject written by a legal expert. Treatises normally are long enough to encompass many volumes.
Treatises have a table of contents and an index that allows law students to quickly see if the treatise covers a certain topic. Some treatises have been cited by judges in many cases, which makes those treatises especially authoritative.
Primary authorities include cases and statutes. Primary authorities are where you want to end your legal research, because primary authorities are the law. However, because primary authorities are not organized by subject and lack the reference and research benefits of secondary authorities, primary authorities are far more difficult to search than secondary authorities. As a result, research that starts with secondary authorities is generally quicker and more efficient than starting with primary authorities.
You can research these in books or online using a service like WestLaw, Lexis, or another service, if you have a subscription. Primary authorities are often available on the internet, but the advanced search features provided by the paid services is still far better than searches on the internet. Still, I must admit that a Google search will often helped find a case or statute that could not easily be found using the paid legal services.
As you get to know your law library, where legal research materials are located, and how to use those materials, you will be able to adapt your research approach to each individual research project. You will know whether to start with a study aid, Hornbook, treatise, legal encyclopedia, or some other item.
For example, if you know nothing about a topic, you might want a quick overview in simple terms. For a case like this, a study aid is perfect.
If you know a lot about a topic, you know there are many cases on the topic, and you need a case from a particular jurisdiction, starting with an ALR or treatise could be perfect.
Regardless of the topic, you might also want to ask a reference librarian if the library has a particular resource that focuses on your research topic.
There isn’t a simple 3-step approach to legal research. Success comes from understanding the legal authorities and how to use them. When you do this, you will be able to customize a plan for each research project, saving yourself hours of researching in the wrong places.