Legal research for written advocacy

Legal research for written advocacy

December, 14, 2010 • Posted by 0 Comments

In ‘Writing to win: the art and science of compelling written advocacy’, Lawrence D. Rosenberg sets out a comprehensive guide to planning, researching and writing a winning argument. On legal research, Rosenberg says:

“Once you have preliminarily identified the issues that you plan to raise and begun to craft your theme, the next step is to comprehensively research the law pertaining to those issues. This part of the process may be undertaken by the lawyer ultimately responsible for the written argument under consideration or by several lawyers working with or under the guidance of the responsible lawyer. In any case, it is critical that the key issues be carefully examined. The most helpful authorities will be statutes or cases that directly govern the issues about which you are concerned. If there is not a statute or case that directly controls, the next best authority may be a controlling case that addresses a different but analogous issue or has pertinent and helpful language, a non-controlling factually similar case from a lower court or different jurisdiction, or an administrative regulation that speaks to the relevant issue. Other helpful authorities may be non-controlling cases that address different but analogous issues, treatises, law review articles, dictionaries, and other sources that can help develop your argument. When undertaking your primary research, it is important to make sure that you plan to rely not merely on helpful language in a case or the legal rule that a case sets forth, but also upon how that language or rule was specifically applied to the facts in the case. Ultimately, the most persuasive authorities are those that articulate or adopt the legal rule that you advocate and then apply it to similar facts and reach the desired result. To be sure, there may be instances, such as in the interpretation of a statute, where sources like legislative history or dictionaries may be more prominent than most cases would be in supporting your argument. But for the most part, it is the similarity of the application and outcome of the rule you advocate that will persuade judges to rule in your favor.

It is important not to rely on a single research method, such as computer searches. While it is possible that you may find most of the key authorities regarding your issue by performing only a single search method, it is also quite possible that you may miss one or more of the most pertinent authorities. It is usually ideal to begin your research by examining a treatise or an article that addresses the issue that you are researching. Such an examination will likely lead you to many of the authorities that you need. It is also beneficial to examine the relevant practice digest(s) that include the issue you are researching. For statutory research, it is usually helpful to consult the annotated version of the statute at issue. After you have reviewed such sources, you should supplement your research with computer searches. Unfortunately, it is far too common for a lawyer to miss important authorities by relying solely on either book or computer research.

Complete the Secondary Research

Once you have carefully researched the primary issues in the case, research the secondary issues. These might include the applicable standard of review on appeal or for summary judgment, general statements about the desirability of resolving certain issues by way of legal motion, and analogous areas of the law upon which you may wish to rely. Completing as much of the research as possible before undertaking any extensive drafting usually makes the drafting process go more smoothly”.

The full article discusses the procedure for preparing to write a legal brief and tackles the general conventions for legal writing. The first step in preparing for legal writing is to analyse the case and the next step is to review parts of the record relevant to the argument being considered. Succeeding steps include identifying the idea of the issue or issues to be addressed in the argument and conducting legal research. The general conventions include using respectful and appropriate language, using simple and clear language and avoiding footnotes.

To read the full article, see: Writing to Win: The Art and Science of Compelling Written Advocacy. By: Rosenberg, Lawrence D., Verdict, 19462190, Winter 2010, Vol. 24, Issue 2.