Volume 1, Number 4 ● An E-Publication of the Los Angeles County Bar Association ● December 2007
Archives of Past Issues
YOUR FIRST: RESEARCH PROJECT
In almost every law firm, younger associates are charged with the responsibility of conducting most, if not all, of the research projects for the partners. Some of these projects will be last-minute requests, while others may be long-term efforts. Often, associates also will be handed multiple assignments on a variety of issues. It is important to develop a system for conducting research so that these responsibilities do not become overwhelming.
UNDERSTAND YOUR ASSIGNMENT
The most important part of any research assignment is to understand your assignment. To do this, you must first know what is being asked. When you sit down with the partner or supervising attorney to go over the research project, make sure you have the following three items before you leave: (1) the issues, (2) the deadline, and (3) the limitations.
To begin with, although it sounds ridiculous, many associates jump into their research without really knowing what the issues are for the project. New attorneys may simply be too intimidated by the partner to ask questions about the assignment. Always be sure to reiterate the issues before leaving the partner's office. Repeat back what you believe the partner has asked you to research. This clarifies the assignment for yourself and communicates to the partner that you understand what legal points are being sought. Many times you will find there are subtle but important differences in your understanding and the partner's intentions. You definitely do not want to find out at the end of your research that you have spent hours analyzing the wrong issue.
Second, always be sure to ask the partner when he or she would like to see the finished product. Is the deadline flexible? Does the partner want a written product, or will an oral summary suffice? If possible, try to arrange a specific date and time to discuss your findings.
Third, ask if there are any limitations to the research. For example, is this a fee-sensitive client? If so, you may want to know this before spending hours on Lexis or Westlaw accumulating online charges. Does the partner want you to update him or her on the status before you spend more than four to five hours on the project? Should your research be limited by jurisdiction or any other factors? There are an endless number of possible limitations to any research project. The important thing is to make sure you ask the partner about them before you leave the partner’s office.
DO NOT REINVENT THE WHEEL
As with any type of project, it is always a good idea to see what your colleagues have already done before you start your work. On many occasions, you will find that other associates have either researched the same issue or can offer helpful advice on where to begin your search. Personally, I find it helpful to talk with senior associates or junior partners about nuances in the law that may affect your research. Talking with your co-workers beforehand can save you time and energy in the long run.
If the associates you ask do not have any helpful information, try sending out an office or firm wide e-mail inquiring about the issues for your assignment. Also, depending upon your docketing system, you may elect to search the firm's database to see if a similar memorandum or brief has discussed your topics. After you have identified your issues, confirmed your understanding of the assignment, and communicated with your co-workers, it is time to begin your research.
MAXIMIZE YOUR RESOURCES
In law school, we were all taught the method of conducting legal research and the general resources available to us. In practice, however, research can require more than using Lexis or Westlaw.
Many firms have a librarian or library services personnel. It is a great idea to get to know these individuals. They can be an invaluable resource for any attorney. Pay a visit to your librarian, and see if your firm subscribes to any legal web sites or online resources other than Lexis or Westlaw that may help in your research. Even though the firm pays a subscription for these web sites, the client is usually not charged any additional fees if you log on to conduct research. This may help if time and money are a consideration in your project.
Then, identify what tangible resources are located in your office library and what books are available from other offices or the public law library.
Once you have a list of the available resources, it is a good idea to start with a secondary source to get a general overview of the issue. Depending upon the area of law, typically there will be a number of secondary resources, such as treatises, journals, or hornbooks, to rely upon. Sometimes there will be too many resources. You cannot read them all. Be selective, or ask the librarian which ones he or she recommends.
Next, take a look at any relevant practice guides, such as The Rutter Group, or other general points and authorities references. These books will not only supplement the information you gather from the secondary resources but also offer information on the interplay between various statutes and cases. These books will also have case citations, forms, and detailed indexes to further your research.
In some instances, you will find the answer using only these steps. However, since research issues are often complicated, many times you will have to continue your search to find an answer.
BEYOND THE BLACK LETTER LAW
Once you have a firm understanding of the general law, you should probably begin looking through sources such as recent cases, statutes, and opinion letters for the answer. You can do this either through case books or online.
Lexis and Westlaw, although intended to be user-friendly, can be difficult to navigate for new attorneys. If you have problems phrasing your search or cannot seem to find the appropriate database, remember that both services offer telephone support. Many times you will find that these professionals can help you find exactly what you are looking for.
Since law students conduct countless hours of online research in law school, new attorneys generally understand how to conduct a boolean or natural language search. However, it is a good idea to make use of online headnotes to narrow your search. Also, be sure to conduct searches in both databases. Occasionally, the exact same search phrases will turn up different cases in either Lexis or Westlaw. Although these instances are rare, it is better to be safe than sorry.
DETAILS, DETAILS, DETAILS…
At this point, it is a good idea to give the partner an update on your status. Let the partner know where you have searched, what you have found, and where you intend to look. Some partners will ask for the search terms you entered online. Others will only be concerned with the end product. Either way, they will want to know that you are not deviating off-topic and that you are communicating your progress. In many instances, simply leaving the busy partner a voicemail or sending a quick update via e-mail is all the partner will need to feel comfortable that you have the project in hand.
If the research is extensive, try putting together a binder of all the cases, searches, and other steps that you have exhausted along your way. Keeping an accurate record ensures that you do not repeat any part of the process and that you have all the materials necessary when you finally sit down to write the memorandum. These binders also can be helpful in case the issue or point of law comes up again for another partner.
Once you have gathered all your resources and have found your answer, verify the information to make sure that it is still good law. Shepardize or key-cite your case law. There is nothing more embarrassing than having the partner discount your work after finding a recent shift in the law. Again, if this is a long-term project, sign up for case updates or briefings from Lexis, Westlaw, or other online resources. Many web sites will send you case summaries or updates according to your choice of law. Partners always like to know that you are aware of recent changes and landmark decisions in the law.
HITTING A WALL
Sometimes partners can be vague in their research assignments. For example, a partner might ask you to find a case that says "X" even if no case exists on point. Or you may simply hit the proverbial wall in your research where you have not found an answer, and every search turns up the same cases you have already reviewed. I like to call these times "The Search for the Yeti" because it seems as if the assignment is asking you to find something that is not there or does not exist.
If this happens, there are two things you can do: 1) Communicate your progress to the partner, and 2) go beyond the boundaries of the research assignment.
In the first case, if you tell the partner what you have done and where you have looked, the partner may agree that there isn't anything on point and may tell you to stop your research. Or, the partner may modify your assignment after you indicate that you have hit a wall in your research.
In the second scenario, you may start looking at other jurisdictions or other bodies of law for the answer. You may hope to analogize to your situation or to find persuasive, if not binding, authority. Be sure that you do not venture too far without the partner's approval. The partner may find your extra efforts to be a waste of time.
In both instances, if you have exhausted your efforts and cannot find anything on point, you may have to reconcile yourself to the idea that a definitive answer does not exist. Sometimes it is difficult for a young attorney to admit this to a partner after hours of research. Coming up empty-handed is never enjoyable, but, unfortunately, this is a part of the law. There simply aren't always cases, statutes, or opinions that support your position.
THE FINISHED PRODUCT
Depending upon your assignment, the partner may want a written product or an oral report. Either way, outline the issues, points, and counterpoints found in your research. Make note of the opposing arguments raised in the cases. Oftentimes, these are the points the partner will discuss with you regarding the research.
If you are drafting a memorandum, and if there is sufficient time, ask a colleague or co-worker to review your draft before giving it to the partner. Make sure that the memorandum is in the format the partner prefers. Be clear in your writing. Do not attempt to impress the partner with flowery language that will only confuse the reader or detract from the research. If you need more time, let the partner know well in advance rather than wait until the last moment.
If the partner only wants an oral summary, make sure your thoughts are also organized. Be concise in your report, and have your notes and research materials handy.
Finally, be confident in your work. You are the one who has spent the time and effort researching these issues. Be prepared to give your opinion or recommendations, should the partner ask. Imagine that you are the partner. What items would you want to know? What course of action would you take, and why? These issues are the defining points of any mid-level or senior associate’s research project. While the use of these strategies may vary depending upon the nature of the assignment and the prevailing time constraints, the aforementioned paragraphs should provide a solid blueprint for conducting an effective research assignment.
This article was written by Princeton Haw Kim. Mr. Kim is an attorney with the law firm of Reed Smith LLP where his practice focuses on defending institutional clients in labor and employment matters, including wage and hour class actions, discrimination, harassment, and wrongful termination claims.