The Art of Doing Effective Legal Research

The ability to do effective legal research is like any other learned skill; it takes effort and hands-on practice to get good at it. Whether you do your research in the local law library, at an on-campus law school library, or inside your own firm, you need to have a plan before you begin. Without a clear idea of where to start, what to look for, where to look for it and how to document what you've found, you may end up spinning your wheels and wasting valuable time.




Doing legal research can be daunting. Civil and criminal cases grow exponentially by the day, and law libraries are crammed to the ceiling with supplements explaining new rulings and new issues. While some paralegals relish the challenge of a good "case hunt," others equate legal research with doing time in a torture chamber.

Your own positive or negative feelings about research may stem from the nature of the formal training you received on the subject.

If you were fortunate enough to learn from a skilled professional-in school, in a paralegal training program, or from a qualified colleague-consider yourself lucky. With the mounting number of cases filling our law libraries, the best time to learn legal research is now while you can still squeeze in through the file-stacked doorway.

If your skills are a bit lacking, or if you feel overwhelmed by the process, take steps to overcome your "researchophobia" before it interferes with your career development. The shortcomings that will hurt your advancement most are communication problems, either oral or written, and an inability to find information in a timely manner for a harried boss.

To give your research skills a dusting-off, start with some of the available books on the subject. Read up on the best way to browse effectively in a law library and then start practicing. Go on your own time to your local law library and ask for help from the people who work there. Your request for assistance is not new to them, so take advantage of their experience and ask for some guidance. Many of the people who work in our law libraries are also paralegals, law students, and attorneys themselves. By striking up a friendship with a law library employee, you can gain entrance into a vast "hidden" world. Your friend in the law library can get you access to research help, "shepardizing" help, copy machines, computer database time, phone help, and similar benefits available to other paralegal colleagues.

Better still, if you have established a mentor relationship with a fellow paralegal or an attorney, ask your mentors for research help. If you show a willingness to learn and an appreciation of assistance, your mentors probably will be glad to show you the research tricks and shortcuts they've acquired over their legal careers.

If you work in a relatively small law office, you may not have much of a selection of law books to choose from. But even small offices will keep copies of the most important books for the practice-the state and federal codes. These valuable tomes might be known under different names in your particular state, but they include:

1. The state Penal Code-Explains the elements, violations, sentences, and statutes regulating crime and punishment.

2. The state Vehicle Code-Explains the administrative, enabling, enforcement, and punishment statutes pertaining to motor vehicles,

3. The city Municipal Code-Covers various laws and infractions specific to the community.

4. The state Civil Code-Covers civil procedures.

5. The state Business and Professions Code-Gives rules and regulations governing fair business practices and procedures.

6. The state Welfare and Institutions-Covers state welfare issues, mental health concerns, juvenile protection, etc.

7. The state Health and Safety Code-Covers occupational safety rules, narcotics violations, and state safety issues,

8. The state Probate Code-Used to help determine will and probate cases.

9. The state Real Estate Code-Governs real estate transactions with rules, regulations, and guidelines.

10. The state Tax Code-Covers the state tax system for collection and enforcement of tax revenues and the associated laws.

11. The U.S. Tax Code-The federal code that governs the collection of taxes by the IRS.

12. The U.S. Title Code-A wide-sweeping document that governs many legislative actions for the entire U.S. government, including civil rights, law enforcement, and employment rights.

As with legal research issues, if you aren't comfortable with these books, get busy. Even if they don't all pertain to the type of law practiced in your office, you should at least know enough about each to speak knowledgeably should the subject come up. You should know how each book is laid out, how to find information under the various headings, and most importantly, when each code book applies and who uses it-judges, other attorneys, police officers, arbitrators, adjusters, executors, receivers, agents, etc.

Dealing with Physical Evidence

Few are the cases that don't have at least some kind of physical evidence associated with them. Personal injury cases involving car accidents offer a wealth of evidence, from materials left at the scene, to the physical conditions of the vehicles, drivers, and passengers, to photos, charts, diagrams, speed graphs, and evidence lists made by the investigators.

Slip and fall accidents can involve the shoes and clothing of the client, broken steps, loose tile, or any other uneven, rough, or broken surface that might have caused the accident.

Worker's compensation accidents take place in a myriad of different locations indoors and out, at various heights and depths, in all kinds of weather, and involving many kinds of equipment, machinery, chemicals, heat, cold, etc.

Criminal cases are filled with "instrumentalities" of the crime: knives, guns, tools, weapons, cars, etc., and "fruits" of the crime; money, drugs, property, etc. Each of these categories represents a certain type of evidence.

Business law cases are filled with paper-related evidence: reports, ledgers, checkbooks, charts, maps, graphs, blueprints, wills, trusts, contracts, codicils, etc.

If you have a case in your office that has the potential to go to court at some point, then everything is a potential exhibit: the client's files, the items someone collected at the scene of an accident or crime, the paperwork or documentation that proves or disproves something, and any physical item that the client, the witnesses, or the defendant can bring to court as proof of guilt, innocence, malfeasance, omissions, or errors.

The list of possible evidence is limited only by your imagination. You should treat every hard object-a broken tile, a defective brake pad, a file folder of accounting spreadsheets, etc.-as if it were the most valuable thing on earth. Your attorney may need to put that item on display in court one or even five years down the road. Store your physical evidence in a safe place, keep it dry, and protect it from any possible damage from too much handling by curious or untrained people. Sometimes your entire argument, e.g., that a product is defective, may rest on the condition of the physical evidence. Treat your evidence like gold regardless of its quantity, size, or relative importance.

To the untrained eye, physical evidence may not reveal much information. But what looks like a rusted piece of metal to you may reveal hundreds of interesting details to a mechanical engineer. The best way to handle evidence is not to. Go out and find expert help before you do anything. Some evidence may be delicate and may need special care to preserve it. Other evidence, like photos, videos, tape recordings, and handwriting exemplars should be reviewed by highly trained scientists who can determine authenticity, value, age, and other identifying characteristics for you.

If your firm represents the defendant in a case, your attorneys will file the appropriate discovery motions to get access to any physical evidence before the trial. Find some court-certified experts for your "hard" evidence-blood, firearms, photos, metal, fibers, wood, chemical products, etc.-and give them enough time to complete their study and prepare a report of their findings.

Better Legal Writing

As a wise old humorist once said, "Lawyers are the only people who can write a 10,000-word document and call it a 'brief.' "One of the worst misconceptions of both attorneys and paralegals entering the legal field is that to be successful, everything they write must sound scholarly, legal, and tinged with the old-world Latin of their predecessors. This often misguided attempt to write like others in the legal profession usually leads to poor writing habits that create documents neither clients, judges, nor even other attorneys can understand.

Unfortunately, the history of the legal profession has carved out this bad-writing model over a long period of time. Because legal writing has always been hard to understand, odd logic tells most attorneys and paralegals that there must be a good reason for it, so don't rock the boat by writing anything that even hints of clarity. This is not to say that legal jargon has no place in the profession; it certainly applies to many situations. But the criteria for using complex jargon should be based on the answer to the question: Who is the reader? If the reader is another legal professional, then it makes sense to use some familiar jargon to explain things to someone who already speaks that language. Problems arise when legal people write letters and reports to non-legal people. Because these readers don't travel in legal circles or understand these verbal shortcuts, the message is lost on them.

Any time you write an internal memo about a case to another attorney or paralegal, feel free to use jargon, abbreviations, and short cuts that you know another legal professional will understand. This saves time for both of you and helps get the point across with a minimum of effort and paper.

However, any time you write something that goes outside the legal community-a letter, a report, a request for more information, a witness statement, etc.-you must avoid legal jargon whenever possible, especially when your audience may not understand your terminology.

Medical doctors, chiropractors, and scientific experts frequently make this mistake. Their reports are so filled with the terminology of their trades that the average attorney, insurance adjuster, hearing arbitrator, or judge will understand little of what is on the page. This inability to write for the reader irritates many people.

What follows is a way to improve the way you write by giving you some issues to think about before you pick up your pen or sit down in front of a typewriter or word processor. These suggestions will help you prepare your thoughts so you can write with less effort, more impact, and greater clarity. Take these tips and apply them to your legal writing projects: memos, memo briefs, case progress re ports, client letters, representation letters, demand letters, settlement packages, etc.

Since you can't change the way the entire legal profession writes, see if you can improve the way you write for a start.

R.O.S.C.O.-A Model for Legal Writing Productivity

Whether it's a one-page letter to an important client or a 50-page report to the senior partners in your firm, the process of business and legal writing often conjures up fear of failure feelings. This uneasiness can hover over the process of writing and interfere with your overall productivity. A critical client letter that needs to go out immediately may languish on the desk of a paralegal who doesn't know where or how to begin. Worse yet, if the person on the other end sees a jumbled, half-baked effort, what kind of impression does that convey about the paralegal writer or the law firm he or she supposedly represents? Many people seem to think that good writing skills come from some kind of inherited talent, not from an actual process of skill-building. Nothing could be further from reality. True, good writers often seem blessed with a large and potent vocabulary and an ease of organization and expression, but these are acquired skills, just like those needed for interpreting legal matters, computer programming, accounting, or interviewing.

Good writers are made, not born. Powerful writing skills come from training, constant practice, and refinement, not from divine intervention. It's a strange paradox that while most legal matters center around words, e.g., laws, rules, statutes, contracts, etc., legal writing is a subject that generally brings groans from paralegals.

"You want a memo covering the impact of our new client management filing system? By when?"

Faced with this assignment, what's the typical plan of attack? Usually, the person given this task gathers together a hodgepodge of material and sits down to work with no real idea of what to write in the beginning, middle, or end.

After a number of false starts, the writer may return a finished product that lacks clarity, power, or any semblance of organization. An important client letter may leave the office because of time dead lines or other case-related pressures, even if neither the paralegal nor the supervising attorney is fully satisfied with the work. Worse yet, the supervising attorney may not know how to offer appropriate suggestions to correct the problem.

Couple this with a lukewarm or even negative response by the reader on the other end, and you've seen the bad writing loop come full circle.

So what's the solution? Is there a way to organize a large or small legal writing project before you begin? Can you write with more confidence and clarity and better organize your thoughts? The answer is an unqualified "yes." Most good writing begins by following a few rules of organization. Let's start by reviewing a writing productivity model called R.O.S.C.O.

Used as a planning tool before each significant writing task, the R.O.S.C.O. model can help fill in the blanks before you pick up a pen or sit down at the keyboard. You also can use it as a training guide for any fellow employee having difficulty getting started. Remember that as a paralegal, the goal of your writing is not to "inform" but to get some action from your reader.

Complete each element of the R.O.S.C.O. model, which stands for Reader, Outcome, Strategy, Content, and Organization, and you'll see a logical progression starting to build. Answer the following questions before you start your next important legal writing project.

Reader

Who is the reader? A new client? A current client? The head adjuster for an insurance company? The opposing counsel? A staff member in another department? A friend? An enemy? The court clerk? The hearing judge on an important case? Knowing exactly who will read your message takes much of the guesswork out of writing.

What are his or her interests in the case? What about biases? Opinions? Or beliefs? What do you know about this per son already? Do you have any pre-existing information or knowledge of your reader? Do you know his or her current position concerning the topic you’re covering? Do you know of any biases or opinions that might require a delicate touch?

With these issues in mind, you can attempt to change your reader's mind, agree with or confirm his or her position, or provide useful information to improve his or her understanding of the problem at hand.

How does he or she feel about me or my firm? What information does your reader have about you or your law office? Is it a positive image, a negative image, or just neutral? Do you need to change your reader's mind about you or about the firm where you work? Knowing your audience is critical to the success and survival of your message. Remember that your written material is competing with other written material.

Outcome

What do you want to accomplish by writing this? What is your ultimate goal? To continue an existing communication process? To start a new one? To relay some critical or timely information? To establish rapport? To settle a case? To express anger, neutrality, or excitement? Knowing what you want to accomplish before you start can take off much of the pressure.

What do I want the reader to do after reading this? What is the first thing you want him or her to do? Pick up the phone and call you? Settle the case? Lunge for his or her checkbook? Send it to another decision-maker? Act on it in the future? Refer you to an expert? Send you some more information?

Do I need to write anything at all? Is this piece of paper really necessary? Can you handle the matter with a phone call or a face-to-face meeting, or does it need documentation? Do you need to write something to protect you or your firm from potential malpractice problems later?

Make sure your message is strong enough to fight its way to the top of your reader's attention zone. Don't just add another piece to the vast paper shuffle.

Strategy

Of each of the R.O.S.C.O. elements, the Strategy aspect is probably the most flexible. You can go in an infinite number of directions to get your point across with clarity, impact, and style.

What overall approach should I use? Choose the best way to get your point across. Pick an approach that's the most feasible, cost-effective, and time-productive. Follow the old tongue-twisting advertising slogan: "Tell them what you're going to say, say what you're going to say, and tell them what you just said."

Which tone will work best? You have a wide range of options to choose from: hard, easy, friendly, legal, warm, cool, dramatic, subtle, bold, direct, or indirect. Choose the best one to get your message across in a notable manner.

How formal or informal shall I make it? It helps to know in advance if your reader is a friend, an acquaintance, an enemy, or a stranger. With this information, you can accurately guess how your reader will perceive you and your message. A friendly, low-key approach might work best, or you may need to add some stem language to make your point.

Content

This next element of the R.O.S.C.O. model refers to the "meat-and-potatoes" of your message, i.e., what you plan to say and how you plan to say it.

What information do I need to convey? Give your reader enough information to stimulate some action on his or her part. Ex plain whatever is necessary to achieve your outcome. Help your reader learn more than he or she already knows. Gather the available case material to include if it's necessary.

How much information will serve my objectives? Choose a logical midpoint between too much and too little. Decide if you need to provide additional data from the case file like reports, depositions, statements, photos, video, charts, graphs, maps, reports, or briefs.

How much detail do I need to include? Try to break each part of your message down into individual sections so as not to over whelm your reader with information. Decide between too much detail and not giving him or her enough to make an intelligent or immediate decision. Brevity is usually more effective than length.

Organization

Finally, the last element of the R.O.S.C.O. model deals with the physical presentation of your message-what the reader actually holds in his or her hands.

How should I organize the information? Carefully choose the physical layout of your written message. You may be able to cover it with a one-page letter or it may take five. You may need to include a number of attachments, some additional information sent under separate cover, a spiral-bound report, deposition copies, a video tape, or even a stamped return envelope or a reply card. Make it easy for your reader to go from top to bottom and make an appropriate, timely reply.

What items should come first? Last? Give some careful thought to the flow of the piece. You might want to put the good news in front and the bad news at the end or buried in the middle. If it's a settlement letter, be sure to include all of the necessary information to help the reader make a decision and then ask for a response by a specific date. Decide if you can use a direct lead, which gives the reader your news or information right away, or an indirect lead, which delays the message until a bit later on.

How should you arrange the information to support my ideas? You may want to use "bullets," numbered points, or an outline format to highlight your main ideas. You might provide a brief over view at the opening, followed by a description of each point. If the reader will need to refer to other pages, choose a format-parentheses, footnotes, etc.-that's easy to read and use. Choose a format that encourages the reader to act after reviewing your information.

Each of the five factors that make up the R.O.S.C.O. model serves a distinct purpose. The five factors offer guidelines to help you get started. Once you know the answers to these questions, you can begin to write with more confidence. Instead of your thrashing around with only a vague idea of your ultimate goal, the R.O.S.C.O. model can get you going in the right direction. It's not a cure-all for every writing problem but, rather, a springboard you can use to begin your writing tasks. You probably won't need to use the model if you're just dashing off a quick note, memo, or fax, but you should definitely consider it for your next high-priority, high-value letter, brief, or settlement offer. When you know your audience and what you want from them, as well as your strategy to reach that audience, the words will come with less exertion. And that is the key to effective legal writing, legal research, and case management-creating a quality product with a minimum of hardship and effort.