3.2.1 BEGIN AT THEBEGINNING: DECIDE WHAT QUESTIONS YOU NEED TOANSWER

Effective legal research begins before you go to the library or access the Web. Of course, when you write a brief, you should follow the same research methods that are relevant to any type of legal research.

Like all statements of legal issues, your research questions should be focused on how the relevant law applies to the legally significant facts. A popular structure for these questions is the so-called Under-Does-When structure.⁷The “under” part of the question identifies the law that governs the legal issue; the “does” part identifies the narrow, yes-or-no legal question that you are trying to answer (whether it is about liability, guilt, or some other legal status or form of legal responsibility); and the “when” part identifies the legally significant facts that relate to the legal issue. There are a few different ways to express these elements. Sometimes, for example, it makes sense to ask whether a legal status or term “includes” certain facts. At other times, a word other than “does” makes more sense. Thus, some possible formats for the research question are as follows:

Under [relevant law], does [legal status] exist when [legally significant facts exist]? Under [relevant law], does [legal status] include [legally significant facts]? Under [relevant law], can [a relevant party] establish [legal status] when [legally significant facts exist]?

Let’s presume that you are conducting research on the Coors case.

Under the United States Constitution... But of course, when you created the abstract, you read the lower court decisions, and so you know that this is a First Amendment case and that the issue is not a matter of political speech but of commercial speech. Thus, the “under” clause can be a little more focused: Under the First Amendment’s freedom of speech provisions as they pertain to commercial speech...

The “does” part of the research question refers to the legal question that your research will answer. In this part of the question, you ask a yes-or-no question — which may or may not begin with the word does — that asks whether a certain legal condition has been met or whether a certain legal status exists. This part of the question often focuses on the legal question that the case is about, as in the following example:

Is 27 U.S.C. § 205(e)(2) constitutional when...

Of course, when you read the conclusions of the lower courts, you probably learned enough about the law to allow you to address more narrow questions related to the commercial speech test. Thus, you might try to articulate questions that reflect your current understanding of that test and of the relevant arguments, as in the following examples:

Does prohibiting the printing of alcohol content information on a beer label sufficiently advance the government’s interest in preventing strength wars when...

Does prohibiting the printing of alcohol content information on a beer label directly advance the government’s interest in preventing consumers from having misleading information when...

These core questions help you to focus your research by forcing you to articulate the narrow questions that your research is designed to answer.

In the “when” part of the question, you list the legally significant facts that you (or your opponent) will use to demonstrate that the legal issue should be resolved in a certain way. One caveat about the “facts” part of the research question — what is a “fact” in a legal question may vary from case to case. In many cases, the facts are “real-world” facts that describe behavior or relationships (such as “when the officer did X,” or “when the employment contract specified employment at will”). In a statutory analysis case like Coors, however, some (or perhaps all) of the facts may consist of the language or requirements of the statute. For example, if the “does” element had asked merely “is 27 U.S.C. § 205(e)(2) constitutional?” then the “when” element should at least describe what the statute requires, as in the following example:

when the statute prohibits beer manufacturers from printing alcohol content information on their beer labels

If the “does” section had been more detailed, the “when” section might be written as follows, based on your predictions as to which arguments the court would find to be most important: when there is no evidence of strength wars in states or countries in which alcohol content information is allowed to be printed on beer labels

when it is now possible to accurately measure alcohol content in beer and thus the statute is preventing publication of truthful information

The details in your “when” clauses may or may not be important later; right now they are useful in planning the research for the case. The “when” part of the question helps to focus your research because it makes it easier for you to recognize relevant authorities that are similar to your client’s case. The more familiar you are with the legally significant facts, the more quickly you can identify relevant cases and statutes.

Putting all of the pieces together, here are three sample research questions for the Coors case. The first question could be used alone, while the second and third questions might reveal two different aspects of the case, and thus could be used together:

Under the First Amendment’s freedom of speech provisions as they pertain to commercial speech, is 27 U.S.C.

Under the First Amendment’s freedom of speech provisions as they pertain to commercial speech, does prohibiting the printing of alcohol content information on a beer label sufficiently advance the government’s interest in preventing strength wars when there is no evidence of strength wars in states or countries in which alcohol content information is allowed to be printed on beer labels?

Under the First Amendment’s freedom of speech provisions as they pertain to commercial speech, does prohibiting the printing of alcohol content information on a beer label directly advance the government’s interest in preventing consumers from having misleading information when it is now possible to accurately measure alcohol content in beer and thus the statute is preventing publication of truthful information? Some cases have more of a focus on statutory language. In Whitfield v. United States,⁸a

controversy arose about the sentencing of a failed bank robber. The relevant statute increased the minimum sentence from unspecified to ten years if the attempted robber had “force[d] any person to accompany him” while fleeing from the attempted robbery. The statute also mandated a minimum sentence of life in prison if a victim died as a result of forced accompaniment. The defendant in that case had discarded his weapon while fleeing the scene of his failed bank robbery. At one point, he entered the home of an elderly woman with a heart condition. He asked her where in the home they would “not be seen,” and then either guided or followed her to the room she indicated, a distance of less than ten feet. Although he never struck her, she had a heart attack and died. The court was asked to determine whether Whitfield’s behavior constituted “forced accompaniment.”

A research question for this case would be focused more on the meaning of statutory language and the relevant facts from the case:

Under 18 U.S.C. § 2113, which significantly increases penalties for the crime of attempted bank robbery if the defendant “forces any person to accompany him” in the process of avoiding arrest, does a person “force” someone to “accompany” him when he is unarmed and he guides someone ten feet down a hallway in a home that he has broken into in order to hide out from the police?

One more caveat. At this early stage of the writing process, don’t worry about perfect form or perfection in any way. The important thing is to get some information down in a useful format.