Plan and organize your research
Each researcher will develop her own research strategy for the various situations she encounters. The strategy will vary depending on
- the purpose and nature of the research project
- how much the researcher knows about the subject
- the amount of time and money devoted to the project.
In order to develop effective research strategies, the researcher must spend time thinking about these factors before embarking on her research, and periodically revisit and revise her research plan in response to feedback from her research results. The researcher must also be familiar with the various sources: their content and coverage, their strengths and weaknesses, and their appropriate use.
The steps set out in Step-by-Step Legal Research Process will not be appropriate for every research problem. However, they will give you some guidance on how to approach your research when confronted with the multiplicity of resources available to you.
These steps are not completely linear. You may need to repeat certain steps or approach some sources again from a different perspective as your understanding of a legal issue grows. You will not need to complete all steps for each issue you research.
- the deadline for completion of your research
- restrictions on the amount of time and disbursements that can be expended
- the purpose for which your research is required
- more detailed and exhaustive research is required when preparing for argument at trial than when you are drafting the pleadings
- the focus of your research will be different if you are preparing an opinion letter or legal memorandum rather than an argument for court
- the scope of your research will be different depending on the level of court you are appearing before.
In law school many of these parameters are irrelevant. You determine how much time you can spend on a research project. You have unlimited access to otherwise expensive on-line search tools. You are free to step outside the bounds of stare decisis and take a critical look at the law. This means you can conduct more extensive research than would often be the case in practice. You may focus more on the law of other jurisdictions and on secondary literature. You can extend your inquiry beyond what the law is to what it should be.
If your research problem is based on a fact pattern, consider the facts that have been given to you and start to characterize those facts within a legal framework. There are several ways to structure your initial analysis. Maureen Fitzgerald, in Legal Problem Solving (Toronto: LexisNexis Canada, 2010), recommends the following structure at page 7:
- Who are the people involved in the problem?
- What are the parties’ roles or occupations?
- What are the relationships between the parties?
- What are the parties’ special characteristics?
- What occurred?
- When did it occur?
- Where did it occur?
- What is the nature of the location where it occurred?
- How did it occur?
- What are the parties complaining of?
- What are the parties claiming?
- What are the injuries or harm?
- What will the defence to the claim likely be?
This initial “thinking time” is crucial to your research. If you don’t consider the problem in this open-ended way at the beginning, you may miss important issues. During this process, note whether some facts or legal issues may be determinative. For example, an impecunious defendant, or the expiration of a limitation period, may make the rest of your research academic. Determinative issues should be given priority when you start your research.
Proper identification of the issues and of key words and subject headings at this stage will expedite your research, and permit a more accurate and thorough analysis of the law. As you proceed through the steps identified below, constantly refer back to your initial characterisation of the issues. It is common for a researcher to change her definition of the issues as she progresses with the research project.
If your research is for a seminar paper, you will need to develop a thesis. Rather than just regurgitating information about a topic, you must identify what you want to say about the topic. The first step is to acquaint yourself with secondary and primary sources on the topic. Then, in order to develop your thesis, you must spend time thinking about your research data in a variety of creative ways. Some techniques for doing this are discussed in the section on Assess the Cases.
In a simple, single issue research project, you can keep all of your material in a single paper folder or electronic folder without any problem. However, for a more complex research assignment, keep separate sub-folders for each issue of law, or use electronic tags for each issue of law. Put copies of relevant sources in the appropriate folder, together with notes indicating whether these sources have been updated.
In addition to these relevant sources, keep general research notes, including the problem assigned, your research strategy, the issues and sub-issues identified, and your notes on which sources have been reviewed or rejected and which sources must still be checked.
Highlighters and sticky notes are useful for annotating research documents. If you prefer working with electronic copies, use the highlighting and annotation features of the word processor or electronic reader to capture this information.
It is common to be working on several projects at once, or to come back to your work after a period of time. Annotations will greatly increase your efficiency. Instead of re-reading the whole case to remember why it seemed important, you can quickly refer to a few highlighted passages and your notes regarding the issues to which the case relates.
In order to conduct your research in an orderly fashion, it is necessary to keep a list of the sources you have reviewed. A complete research bibliography will contain the following information:
- title, author and year (or most current release date) for texts, citation for periodical articles, page or paragraph references for helpful or damaging passages
- headings and classification numbers used in searching digest and encyclopaedia services, and the currency date for the topics searched
- databases searched, date of search, and search string used
- headings used for searching indices, and date of index
- case citations for cases reviewed, references to paragraph or page numbers for helpful or damaging passages, and a record of where and when you noted up the case
- list of statutory provisions reviewed, together with the date to which you checked whether the statute had been amended, and a record of where you checked for judicial consideration of the statute
This information will keep you from going in circles and repeating the same steps. It will enable you to quickly prepare a bibliography. It will permit whomever is supervising your research to ascertain whether you have covered the proper sources, and help you or someone else to quickly update your research at a later date.
The research record kept by some electronic research tools provides a useful summary of some of your research steps. For example, the research history on WestlawNext Canada keeps track of the search queries and documents viewed for a full year, and allows the user to search within the documents viewed during that year, and to filter them by client ID and other categories. In addition, you can set the preferences in WestlawNext Canada to email you a copy of your research history for each search session, so that it can be kept in the client file as a record of your research. There is a search history function in Quicklaw, but it contains less information and is available for a short period.
Although a checklist does not permit a detailed record, it will help you keep track of your research, and will also remind you of sources to consult. This site includes a sample checklist. All sources listed on the checklist do not have to be checked for every research project. Conversely, the checklist is not exhaustive. Additional sources should be consulted depending on the nature of your project.
The easiest way to map out your initial strategy is to review a legal research checklist, and mark the sources you intend to consult. If your research problem involves more than one legal issue, use a different copy of the checklist for each issue.
It will be difficult to map out a detailed research strategy until after you have reviewed some secondary sources dealing with your issues. Your strategy will vary depending on your general familiarity with the subject, and the nature of your research project. Although these readings set out a general methodology for research, your strategy must always be adapted to your situation. It must be focused on the appropriate resources in your subject area, taking into account the parameters listed above.
- For a common law issue, you will usually start by reviewing one or more narrative secondary sources. However, your circumstances may dictate a different approach. If you are already familiar with the general area of law, and know a leading case, you can start your research by reviewing that case and noting it up.
- Statutory research is rather different from researching the common law. It requires that you start with consideration of the statute itself, and then look for judicial consideration of and commentary on the statute. Your first step will probably be to find and review an annotated version of the statute.
- Some research problems may require you to go beyond traditional legal sources and include research from other disciplines.
Fitzgerald, Legal Problem Solving – Reasoning, Research and Writing, 5th ed. (Toronto: LexisNexis Canada, 2010).
Whitehead & Matthewman, Legal Writing and Research Manual, 7th ed. (Toronto: LexisNexis Butterworths, 2012).
MacEllven, Legal Research Handbook, 6th ed. (Toronto: LexisNexis Canada, 2013).
McCallum, Synthesis: Legal Reading, Reasoning and Writing in Canada, 3rd ed. (Toronto: CCH Canadian, 2012).
McCormack, Papalopoulos & Cotter, The Practical Guide to Canadian Legal Research, 3rd ed. (Toronto: Thomson Reuters Canada, 2010).
Queen’s University Faculty of Law, Legal Research Materials, Steps in Legal Research.
Tjaden, Legal Research and Writing, 3rd ed. (Toronto: Irwin Law, 2010). Companion website:www.legalresearchandwriting.ca
Tjaden, “Strategic Thinking in Legal Research” (20 July 2011) online: slaw <www.slaw.ca>.
University of Calgary, Law Library Research Guides, Starting Points.