Importance of the Research Plan

The research process has certain constraints—you have neither infinite time nor infinite resources. Your supervising attorney has certain expectations that may or may not align with your preferences. The research question itself may be confusing, unfamiliar, odd, or a combination of all three. But what will see you through any and all research experiences is a solid research plan.

Research is not a one-size-fits-all process. Each of you has a different system for organizing your plan and beginning your research. You may prefer a checklist or you may find it easier to work with a more narrative structure. Perhaps you like to write everything down while others may prefer keeping track of research online. One thing to keep in mind is that the research process begins when you receive the assignment; if you approach the assignment as the first step in filling out the research plan, you increase your chances of taking effective notes and asking relevant questions.

Metacognition and the Research Process

Metacognition is awareness and understanding of your thought processes. Reflection on your research process and the strategies you used is essential to becoming a better researcher.

Some questions to ask yourself during the research process:

Awareness

• Have I thought through the research problem and made a research plan before I begin searching?
• Have I included the legally relevant facts in my search terms?
• Do I need to run a broad or narrow search?
• Will a natural language search suffice or do I need an advanced search

Planning

• Do I need to learn anything about this area of law before beginning my research?
• Would consulting secondary sources be helpful?
• Have I included the legally relevant facts in my search terms?
• Do I have all the information I need to begin searching?

Self-checking and debugging

• How does what I found line up with what I expected to find?
• Am I answering the research question?
• Am I on track to meet the deadline?
• Do I need to use another database?
• Am I keeping a research log?

Cognitive Strategy

• Do I know when and how to revise my research strategy?
• Am I using sources to find other sources?
• Am I reading through the information as I find it and not jumping from source to source?
• Am I distinguishing binding authority from persuasive authority?

Beginning the Research Plan: The Research Interview

You will receive research assignments in many different ways, but the common denominator is to get as much information as you can when the assignment is given. While not a formal interview, the process of receiving an assignment is your chance to get all the details you need. The following questions can help ensure you begin the assignment on the right foot.

Substantive questions include:

• what court has jurisdiction over your case? what law is being applied? (not always the same)
• clarifying facts
• determining if there is known legal authority to start from, i.e. a source to begin researching with
• if similar work has been done before, is there a file you can review or an attorney you can consult?
• ask for clarification of any terms or art or acronyms you don’t understand

Procedural questions include:

• What is the expected work product?
  • client letter, memo, brief, etc.
• How would you like it to be formulated?
  • oral report, email, written memo, etc.
  • paper or electronic version
• What style would you prefer?
  • persuasive, strictly factual, brief-like, memo-like
• When is it due?
• Would you like me to check in periodically?
• How in-depth do you want the research to be?
• Are there any limits on the resources I can use?
• How much time is reasonable to spend on this project?

The research plan can keep you from wasting time researching. It is intended to save you time and energy—not be something you dread putting together.

Problem Typing

Not all research plans will look alike. Much depends on what type of problem you’re researching. Do you need to locate an expert witness, quickly answer a factual question, find authority to argue a legal point, find a form…? It is vital to know the purpose of the information you’re seeking.

Problem typing is a way to funnel your research question into the most efficient research plan. With thanks to Paul Callister, here are the various problem types:

• Retrieval of a known item
• Information on a particular subject
• Information from an agency or organization
• Statistical and/or news
• Special techniques, such a legislative or regulatory history research or people searching

Example: You’re looking for information about a potential expert witness. While you don’t need a full research plan, it will still be helpful to have a record with the name and affiliation of the potential witness, as well as where you searched, what you found, and for billing purposes, the amount of time it took and client matter number.

Research Plan Categories

• Legally relevant facts
  • To identify: remove the fact. Does it significantly change the outcome? If yes, then it is legally relevant.
  • Change the fact. Does it significantly change the outcome. If yes, then it is legally relevant.
• Issue statement
  • Does/Is ____(legal issue)________ when ___(facts)_____________?
• Jurisdiction (federal, state, perhaps both)
• Sources of information (e.g., treatise, legal encyclopedia, form book, etc.) and sources of law (e.g., statutory code, regulation, judicial opinion, etc.)
• Areas of Law (e.g., property, torts, secured transactions)
• Claims/Defenses
• Relationship/Status of the parties
• Search Terms
• Do you need any background information?
• Miscellaneous: deadline, format, etc.

Problems Encountered while Researching

Searching Strategies

There are two main types of searching: natural language and terms and connectors.* Natural language searching uses only words. Terms and connectors searching uses words (terms) + connectors, including synonyms, and truncators. One example of a connector is /s for within the same sentence. One example of a truncator is ! which you use for alternate word endings.

Consider the following scenario: you’re representing the parents of a 12-year-old who was bitten by a neighbor’s dog. Some of the facts suggest that the child provoked the dog. A natural language search could be: dog bite child provoke. This search uses only words with no connectors or truncators. A terms and connectors search could be: “dog bite” /p (child or minor) /p provo!. This search places dog bite in quotes and turns it into a phrase. It also groups child and minor and truncates provoke in case terms such as provocation are used.

A rule of thumb for searching is that if you don’t know much about a topic, then begin with natural language searching. As your knowledge increases, you can turn to terms and connectors searching for more precise results. I usually default to what I think of as terms and connectors lite: I use natural language terms with few synonyms, but I place connectors such as /s and /p between them.

For more information about how Westlaw and Lexis use connectors and truncators, you can go to the main search bar in each. Right beside the search bar is a link to search tips with a complete list.

*Westlaw also provides for plain language searching which is natural language searching + the use of quotes around phrases.