3.2.2 BROADENINGYOURHORIZONS(YOUCan COMPAREAPPLES ANDORANGES)
After you have formulated your research question(s), you should take two more steps before you begin researching your specific legal issues. First, evaluate your level of ignorance about the case and do any needed background reading.
Second, decide what you’re looking for. What are your “ideal” authorities and your “practical” authorities? That is, if you could invent an ideal authority, what would it be? On the other hand, if the ideal authority isn’t out there (and it probably isn’t), you should decide what types of authorities would be useful in your client’s case.These steps are important because the problem many people have with legal research is not that they can’t find relevant authorities, it’s that they don’t recognize relevant authorities when they see them. Even people who can eventually recognize relevant authorities often don’t recognize them during the initial phase of their research. Perhaps because they don’t know enough about the relevant law, they are looking for a case that is the perfect match, and they ignore every authority that is not identical, factually and in every other way. After they realize that they’re not going to find the ideal case, they have to retrace their steps to pick up those imperfect authorities that now look a lot better.
Although it is tempting to dive right into primary authorities, your dive is much more likely to be a successful one if you have first done some needed background reading and decision making. Many researchers are able to recognize valid but imperfect authorities the first time through only because they have completed background reading and used their general knowledge about the area of law (whether preexisting or newfound) to help them identify both ideal and practical authorities.
To decide what kind of background reading is necessary, consult the “under” clause of any research questions you have drafted to evaluate your level of ignorance.
If you have written “under Section 23’s limitation provisions,” you are pretty well focused on the narrow legal issues. If you are familiar with those provisions and the law governing those provisions, then you do not need to do any background reading before trying to identify what you are looking for. If you are unfamiliar with the statute or the cases governing it, however, you can use narrow search terms to find some worthwhile background reading.If your “under” clauses are even broader, with such phrases as “under the First Amendment” or “under state and federal employment law,” you are obviously pretty unfamiliar with the narrow legal issue that your case presents. In that situation, go to secondary sources first. Do some general background reading by conducting Internet research, by looking for relevant encyclopedia entries, or by reading American Law Reports or law review articles.
Although a search for law review articles in an online database may generate a daunting number of “hits,” remember that unlike case names, law review titles instantly reveal their legal significance. Spending ten minutes scanning through a hundred or more titles may result in finding a title that is exactly on point. Conducting this kind of background reading can help you recognize valid authorities both by teaching you the key terms relevant to your client’s legal issues and by giving you a broader understanding of relevant categories of facts and authorities in a particular area of law.
Reading complete law review articles is usually not necessary. While some complete articles may be worth reading, many more may be worth dipping into for the needed background information. Most law review articles begin with a literature review or with general background about the legal issue. You may be able to give yourself a good overview by reading the first few pages of several articles that address some aspect of the relevant statute, constitutional provision, or legal issue.
Reading these articles will help you understand the substance of the law better, and may give you ideas for arguments. In reading law review articles about 18 U.S.C. § 2113, for example, you would find that it is called the Federal Bank Robbery Act and that it was enacted in response to a wave of violent bank robberies and kidnappings in the 1930s, committed by infamous “gangsters” such as John Dillinger.9Having that knowledge might lead you to argue that this statute was not meant to enhance sentences for behavior like the defendant’s, but was meant to deter organized crime.
Once you have identified or acquired the needed background information, tentatively identify ideal and practical authorities. Identifying ideal authority is simple: It would be great to find a mandatory authority that dictates a decision in your favor, whether that authority is a statute, a constitutional provision, or an on-point case. Finding your ideal authority may be difficult, because the United States Supreme Court and other courts of last resort frequently take up issues that they haven’t decided before. Even if you are writing to a trial court, however, you should also consider what nonideal or practical authorities would support your argument and be acceptable to the court.
To identify practical authorities, broaden your horizons. If your client is a nun who was bitten by an aardvark, don’t pass by a case about an antelope that bit a priest. That is, instead of looking at the narrow facts of your case, look for legally significant categories that you can use to characterize the parties, events, or issues in your case and that will help you recognize potentially relevant authorities.