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LAW 8000 - Actual Innocence: Research Process & Picking a Topic

This guide was originally prepared for law students in a law school class on wrongful convictions. This guide is designed to provide a broad overview of information relating to wrongful convictions.

Getting Started

Good research begins with knowing what is being asked of you and knowing what it is you are researching. New attorneys often overlook the importance of their initial communications with those assigning them projects. In their zeal to impress their employers and to appear informed, new attorneys may draw their own assumptions about the objectives for the research, neglect to ask clarifying questions, or may even appear disinterested in the assignment. Good communication skills are vital to insuring that you have a solid understanding of your assignments and that those giving you assignments know they can count on you. We recommend consulting the JUST ASK checklist of questions to ask when receiving a new research assignment:

Jurisdiction – Do you need to look at federal law? If so, what circuit? State law? Administrative decisions? Some combination of the above?

Useful Tips – Does the assigning attorney have any suggestions for where to start? Are there any important experts, cases, documents, etc. that you need to know about?

Scope of Research - How much information does the attorney need? Is this an exhaustive search or just an overview? Ask for a deadline!

  • For assignments given to you via e-mail, read the e-mail thoroughly.
  • For assignments given to you during a meeting, listen carefully and take detailed notes. 
  • When you receive an assignment, ask questions to clarify the scope of the project and anything that is confusing.
    • Your questions should include asking for recommendations for key sources to consult; clarifying the format that your work product should take (i.e. research memorandum, hard copies of relevant material, draft insert for document, etc.); and confirming the deadline for completion of the assignment.

Terms of Art – Are there any key words or phrases that you need to know?

Acronyms – Clarify the spelling and meaning of any acronyms.  Attorneys often use acronyms without realizing that people new to the field don’t know their meaning. Don’t be afraid to ask what an acronym stands for.

Sources – The assigning attorney is likely an expert in the field and knows of a “go-to” source in that area.  Ask if there is a well-known treatise they recommend.

Key Cost Constraints – Are there any billing restrictions related to Lexis, Westlaw, document delivery services, etc.? How many hours should you spend on the project?

 

Beyond JUST ASK:

  • Once you have worked through the JUST ASK steps, reiterate your understanding of the project. After you have been given an assignment, send a follow up e-mail confirming your understanding of the assignment, including the key issue(s) to be researched, the format your work product will take, and the deadline. This provides a good roadmap for you of the project and also gives your supervisor the opportunity to clarify any additional details.
  • Maintain good communication throughout the process.  As you work on the project, check in regularly to let your supervisor know of your progress, to confirm that you are on the right-track, and to get additional guidance.  If you are unsure about the extent of communication your supervisor desires, consult with other attorneys who have successfully worked with your supervisor. 
  • Timely respond to e-mails.  It is important to timely acknowledge e-mails that your receive, even if you cannot get to the substance of the e-mail right away.  For example, if you are sent an e-mail asking for a bit of research, respond to the e-mail at your earliest opportunity to let the sender know that you received their e-mail and advise the sender of when they can expect to receive at least some preliminary work on the project.
  • Project confidence.  As a new attorney, it is natural to feel overwhelmed and unsure of your abilities when given a new assignment.  Do not let these feelings compromise your professionalism when communicating with your supervisor. Show enthusiasm for the project and ask appropriate questions about deadlines and suggestions for getting started.  Should you feel confused or overwhelmed as you work on a project, identify what it is you need guidance on, such as help prioritizing research items or confirmation that you are researching in the right places, and go to your supervisor with specific questions.

Your research strategy will vary depending on your legal issue and the nature of your project.  While there is no one path that works for every research question, these steps are a useful starting point:

  • Preliminary Analysis: It is common for those new to legal research to go directly to a search engine and start typing away, hoping to find an answer quickly.  Taking some time to step back from the search engine and think through the issue to be researched will save you time in the long run, as it will make your searching more efficient and effective.
    • Identify your relevant and material facts.
    • Select appropriate words, keywords, terms of art, and phrases to use for generating search terms. For those keywords, think through synonyms that may be used in lieu of those words.
      • TAPP: Things, Actions/Activities, Persons, Places
      • TARP: Things, Actions/Activities, Relationships, Places
    • Identify your preliminary issues and formulate your search queries.
      • Identify what area(s) of law are implicated by your issue.
      • What is the question to be researched, what topics are implicated by that question, are there sub-issues that should be considered?
      • You may find it helpful to write out the question(s) that you are researching
    • Identify the jurisdiction(s) involved.
      • Before you begin your research, you need to determine which law is controlling for your issue.
        • Is the issue governed by state or federal law?
        • For state law questions, what state(s) law is at issue?  
        • For federal law questions, what are the relevant Circuit and District courts?
    • What do you already know?
      • Identifying what you already know about the issue and/or area(s) of law involved in your research assignment will influence where you start your research.
  • Begin your research by consulting a secondary source. Secondary sources offer guidance on legal topics and questions.  They are a critical resource to help you get a "lay-of-the-land" regarding your issue and will identify statutes and leading cases to jump start your research. If you are not familiar with the legal issue then we always suggest starting with a secondary source to help you understand the context of the specific issue in the larger area of law, provide you with important phrases or terms of art, and direct you to the most important cases and statutes.
  • Locate relevant statutes. If there is an on-point statute for your issue, look up that statute in an annotated code.  Take note not just of the language of the specific statute but also review the rest of the "chapter" in which the statute appears to identify other related and relevant statutes.  For each relevant statute, review the annotations for citations to cases and secondary sources.
  • Find relevant cases.  If you have identified relevant cases by looking at secondary sources and/or annotated codes, review those cases. Use the on-point headnotes of each case to search for other relevant cases in your jurisdiction, and use the citator (Shepards in Lexis, Key Cite in Westlaw, and BCite in Bloomberg) to identify cases that have cited to your cases.  Also, do additional keyword type searches to find other relevant cases.
  • Confirm that your authority is still good law. Use a citator (Shepards in Lexis, Key Cite in Westlaw, or BCite in Bloomberg) to confirm that your cases and statutes are still good law.

Research Journal

Legal research is iterative and non-linear and tracking your research is an important part of the legal research process. Keep a research journal, log, or record of your work. Include the following in your journal:

  • a statement of the issue
  • the results of our preliminary research in secondary sources
  • research tools you consulted
  • information about key numbers, cases, periodicals, texts, and the like
  • searches and search terms run in electronic databases
  • descriptions of updating tasks
  • your opinions, analysis, and evaluation of the sources you consulted
  • exact quotations with all the information needed to provide full and complete citations

Utilize Folders

As part of a cost-effective research strategy, we also recommend making use of the folders on Lexis, Westlaw and Bloomberg. If you are working in an environment where there are charges associated with viewing or downloading documents, saving them to a folder can save you from being charged a second time if you need to view them again in the future. But saving documents to a folder is also an good way to keep track of your work. Make use of the highlight and annotation tools to take note of why you are saving the documents.

Evernote and PowerNotes

Since many research tasks will involve using multiple databases and websites, another useful tool you have access to is Evernote or PowerNotes. With Evernote or PowerNotes, you can gather information from any online resource. You highlight the relevant text, add any wanted annotations and Evernote and PowerNotes will save the content to an online research project, similar to a folder on Westlaw or Lexis.  But with Evernote and PowerNotes, you can save content from any website or subscription databases such as Lexis, Westlaw, Bloomberg Law, HeinOnline, etc. in one place.

As you are adding sources to your research project in Evernote and PowerNotes, an outline will be built for you as you go. As you are working, you can easily restructure your arguments by dragging and dropping sources to move them around within the outline.

When you are ready to start writing, you can download your outline from PowerNotes to Microsoft Word. The download from PowerNotes to Microsoft Word will also include the links to all your sources so you will not forget where the information came from and you have all your citations saved in one place.

To get started with Evernote, visit evernote.com and download/install the Evernote extension into your Firefox browser. Create an account using your vanderbilt.edu email address.

To get started with PowerNotes, visit powernotes.com and download/install the PowerNotes extension into your Chrome browser. Create an account using your vanderbilt.edu email address.

The best time to stop researching is when you have found the answer. However, one of the trickiest research tasks is knowing when your research is completed and many researchers lack the confidence to know exactly when that time has arrived.

Legal research is iterative and nonlinear and requires thorough research involving looking at a number of sources and types of materials. Finding one on-point authority does not mean your research is complete. However, it also is simply not possible to run every conceivable search in every conceivable resource and review every conceivable search result. Good legal researchers find the sweet-spot between one-and-done and scorched-earth type research.

The following may signal that you have found a good spot to conclude your research:

  • Costs exceed benefits. When the research cost exceeds its expected benefits, you should stop.
  • Your searches keep turning up the same set of relevant authorities.  If you are no longer finding relevant new sources, you have probably found the bulk of what is available.
  • You have searched in a variety of available sources (i.e. secondary sources, cases, etc.) and resources (Westlaw/Lexis/Bloomberg, government websites, other available resources).
  • You have searched using a variety of keywords.
  • You have searched using a variety of methods (using secondary sources to find primary authority, keyword searching, mining headnotes to explore Topics/Key Numbers, reviewing citing references, etc.).
  • For your most relevant search results - you have reviewed both the sources they cite and sources that cite to those materials.

Don't be afraid to ask for help.  Law firm and court librarians can help direct you to the best resources and help you develop a research strategy. 

Be mindful of the cost of online expenses. Unlike the unlimited access to research databases that you are familiar with at Vanderbilt, there are costs associated with using these resources at firms and courts. Firms may have flat rate contracts with Lexis, Westlaw, or Bloomberg, but they will still track research charges in order to bill them back to the client. 

But this doesn't mean that you should waste precious time trying to find an answer on Google.  Your time is valuable.  Firms pay for the databases, so there is an expectation that you will use them.  Just make sure you use them wisely.   When in doubt, ask for help.

Additionally, consider this advice collected from our colleagues in firm and court libraries:

Other Useful Vanderbilt Legal Research Resources

Seminar Papers

Paper topics for seminar classes should be original, significant, timely, and fascinating. The paper topic ideas should be fascinating in the sense that they should be informed by your own interests and by your audience's needs and concerns. Paper topic ideas must also be manageable to meet the requirements of the course and the time allotted to you.

These books can help you select a successful topic and plan and organize your paper:

Once you have settled on an important and manageable paper topic that interests you, you will need to do a careful search of legal periodicals to determine what has already been written that may "preempt" your paper. The preemption process entails a meticulous survey of the pertinent legal or specialized literature to determine whether your paper topic and your treatment of your paper topic have already been published by someone else.

To conduct a preemption check you must do more than just survey some of the pertinent law or law-related scholarly literature that deals with your topic; you must locate and scrutinize all of it. In fact, you should begin your preemption check soon after a topic has begun to engage your serious interest, so that you do not invest too much time researching and writing on a topic already covered by someone else whose approach you are unable to distinguish yourself from.

To find articles in journals, you will generally consult an index (in paper or online) or search online for full text. For the preemption process you will use these same tools to locate preempting literature in law journals, law-related journals, or specialized scholarly journals.

I. Indices/Law Periodicals

Any of these indices is designed to provide you with a specific citation to a specific article. Armed with a specific citation you can locate the cited literature by searching our library catalog. If our library does not own the publication you seek, then you can request it from interlibrary loan, an online service of this library.

II. Full Text Databases

In many instances, the specific journal article you wish to read can be found on a full text database. Both Lexis Advance and Westlaw Edge contain full text of thousands of law review articles. Lexis Advance now offers full text coverage of more than 400 law reviews, and Westlaw Edge provides full text coverage of 475 journals, combined with abstracted or selective coverage of more than 600 journals. This substantial full text coverage does not supplant the usefulness of periodical indices, however, for at least two reasons. First, Lexis Advance covers fewer than 450 law journals and law reviews, and Westlaw Edge's coverage of 600 journals is often selective or limited to abstracts. Second, at least 300 of Westlaw Edge's online full text journals begin in 1993 or later, and only 100 of the full text journals on Lexis Advance begin before 1993.

Another full text database, HeinOnline, is a pdf based collection of full text legal research materials, including over 2,600 law-related periodicals dating back to their inception.

III. Non-Law Indices

IV. Updating

To determine whether pending not-as-yet-published legal scholarship preempts your work on your note topic, look at Social Science Research Network (SSRN). From there click onto LSN, the legal scholarship network. The LSN homepage provides a link to a list of law and law-related journals and working papers who provide email abstracts of materials they have accepted for publication but have not yet published.

Wrongful convictions occur in the United States for a variety of reasons, so it is most helpful to start your research with tools that will give you a good overview of the various factors that contribute to these convictions. As the study of wrongful convictions is much more policy-based and relies on data, traditional research methods like using generalized keyword searches on Westlaw or Lexis Advance would not necessarily prove fruitful. I would recommend starting with an overview of the subject with secondary source materials that parse out the mechanisms behind different kinds of wrongful convictions.