Cara Cunningham
UDM Law
As the holiday season comes to an end, I am reminded of a December break I spent researching my 1995 Jessup moot court brief. I was all alone, save one lone and rather sleepy library employee. My materials were located in the dimly lit and questionably heated basement of a local law library. And I kept a Kleenex nearby-not only because of the cold but because the dust I was conjuring from the books kept making me sneeze.
Don’t get me wrong. I am not complaining. I am making it sound like I walked to school uphill both ways to set the tone. I was on a mission, and these circumstances were type-cast from Hollywood. What was this mission, you ask? Well, I was looking for a needle in the haystack — the one case that would set my brief apart from all others — that one beautiful needle — that one hidden gem.
I set out on my mission like Indiana Jones, dressed in the law-student equivalent to Indy’s fedora and leather jacket. I was filled with his sense of purpose and determination, and I would have felt a fraud if the Holy Grail was just sitting there at the circulation desk, waiting for me to collect it. It was exhilarating to sit alone for days on end, unearthing materials that, judging by the amount of dust, no human hand had touched for some time. I knew I was on the path of a major discovery. (I know, the facts also could have reasonably led to the conclusion that I was alone with these materials because I was completely off base, but that would ruin the story.)
Much like I did almost twenty years ago, law students around the world spent their December breaks focused on this year’s Jessup problem. For those with electronic research capabilities, however, the research path was very different. Unlike me, they did not have to do battle with a stack of dusty books. They did not have to brave the cold and lonely library. In fact, they did not have to leave the comfort of their homes and fluffy slippers. They missed out on part of the challenge, and, I think, part of the fun. This presents a new challenge.
Electronic research has changed the game. The mission is no longer to find the needle in the haystack. Given the depth of coverage, the ease of access, and speed of recovery, there are no hidden gems or beautiful needles waiting to be unearthed. The gems and needles appear, in abundance, after the student types in a general word search and hits enter.
In fact, electronic research has so dramatically changed the landscape that legal writing scholars are reconceptualizing their research textbooks. The legal writing community is also looking for new ways to describe the act of research itself. At a recent national writing conference, an entire session was devoted to what metaphors appropriately describe legal research. (Don’t laugh. This is not an abstract question for people with extra time on their hands.) Legal research is changing fundamentally. This shift is reflected in our efforts to find words that describe it, so we can relate to our students and teach them research skills.
Describing legal research as mining for gold or seeking hidden treasure was apropos for my generation and those before it. It is a description that is lost on today’s generation. Instead, they are faced with a vast and new frontier. Their research tends to yield too much seemingly relevant and usable information. Their mission is to work through all of the “needles” and “gems,” to isolate those that are most helpful, and to do so as efficiently as possible.
So how do we tackle this new frontier? I suggest an old-fashioned approach: A simple research plan. Yes, it does take time to prepare. And, yes, it flies in the face of the “Let’s Google It” approach we use when seeking instantaneous information. But using a research plan actually saves time and can improve your results. It is the same as taping before you paint. The better prepared you are before you start a task, the better the end product will be. Put another way, taking your time in the beginning, may save you time in the end.
A research plan has two parts. The first step is one that most of us already do: Identify your research questions. The only point I would add here is to distinguish between background and dispositive questions. A researcher first should identify any background or foundational questions she has on the topic. For example, when researching whether there is a testimonial privilege for reporters seeking to keep confidential the identify of a source, a researcher might want to know what is a testimonial privilege in general? What testimonial privileges have been recognized? Which have been rejected and why? Is there a binding statute or case on point? Once the background questions are identified, the researcher is then able to identify more detailed dispositive research questions. (Is the test with respect to the recognition of testimonial privileges met in my case?)
The next critical, and often overlooked, step is to identify the particular sources where the researcher is likely to find these answers. This step is critical because it helps to limit the research yield. For example, the initial background questions above are most likely answered by secondary sources (e.g., a law review article or a treatise). Focusing your research universe on secondary sources will reduce the number of research results. Identifying key sources in advance also will help the researcher work more efficiently through the research results, eliminating irrelevant or less reputable secondary sources, etc.
In sum, legal research today presents a new challenge. We are not looking for a needle in a haystack. We are working with a very large and almost limitless universe of gems. The point is to have a research plan in place before you create your proverbial stack. Focus your efforts in advance to limit your results to a workable field and to help you work efficiently through that field. The Indiana Jones in me still years for an adventure. Dusty stacks are gone, quite literally. Perhaps the next frontier is managing the bounds of Space, research plan in hand . . . .
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Professor Cara Cunningham joined the UDM Law Faculty in 2000. She teaches Applied Legal Theory and Analysis, Advanced Appellate Advocacy, International Advocacy, and Public International Law. She has been twice named Faculty Member of the Year by the Moot Court Board of Advocates. In addition to teaching, she serves as the curriculum director for the Law School's two joint-degree programs: The Canadian & American Dual J.D. Program with the University of Windsor Faculty of Law and The Degrees of the Americas Program with the Instituto Tecnologico y de Estudios Superiores de Monterrey. She also is an active member of the Legal Writing Institute, serving on its Global Legal Skills Committee.
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