1 The Research Process

Introduction

Often, the hardest part of beginning the research process is determining what the real question is, and from there, where potential answers might be found (and what they might look like when we find them).

Taking the time at the beginning of the research process to interrogate the question you’ve been asked, in order to determine whether you’ve actually been given enough information to know what you’re looking for (and clarifying, if not), will almost certainly save you time and frustration in the long run.

Therefore, I strongly suggest that you begin your research not with a particular database or search technique, but with a notepad (physical or virtual), and a querying mind. Start your research by asking yourself some of the following questions. You may not be able to answer all of them, and you may have to return to whoever assigned the research to you.

• What’s the general area of law?
  • It can be shocking how often this basic question either isn’t asked, or an assumption is made based past questions, on a firm’s area of practice, or on who is asking the question. These can be good pointers towards a possible answer, but not a definite one!
• What’s the scope of the research you’re undertaking? Are you putting together a brief summary of key aspects of a broad area of law, or doing a deep dive on a very particular aspect of a topic?
  • A legal encyclopedia is a great place to find a summary of key aspects, while a leading text may help you understand how the topic fits into the broader area of law, and how it is split into narrower topics.
  • This is also an important opportunity to manage expectations, and ensure resources available to you match these expectations.
• Is this a novel topic, or do you know of/have been provided key or leading cases?
  • If there are leading cases, they can be noted up, plus you can use a book’s Table of Cases to quickly find commentary.
• Is there governing legislation?
  • This can be traced backwards (legislative intent, legislative history) or forwards (noted up).
• Who cares?
  • IE what groups/organizations/government bodies etc are involved? Check their websites, blogs, press releases, etc
• Is this a rapidly evolving area of law?
  • Recent changes won’t be reflected in textbooks. Try trade publications and CPD/CLE.
• What is “the answer” going to look like when you find it? Is it going to be a number? A summary of caselaw? A form? A definition?
  • This question is often the one that goes unanswered, and while it is best not to assume what an answer is before you start your research, considering what a likely type of answer will be can help you recognize an answer when you find it, as well as helping you determine likely places to look for it.
• What resources do you have available to you?
  • How much time do you have to answer the question?
  • What databases and other sources do you have access to, whether in your office or via a library?
  • Who is available to help you? Another student? A paralegal? A librarian? All can bring different strengths and skills to bear, but working effectively with others requires real work on your part.

Browse, Search, Browse & Search

Much of our focus when we are learning legal research skills, or research skills generally, is on how to search: What terms and connectors work in what databases, how to construct complex searches, and how to filter our results. While these are valuable skills, that will be covered, it remains essential to remember that we are not (just) searchers, but researchers. What this means is that often, searching is not the only or best technique available to us: Most tools, sources, and services we use also allow browsing. How browsing works often depends on the source we’re using… we might have to open up plus (+) signs to expand a topical tree, we might click on links to see what other articles have been assigned the same subject heading as an article we’ve already found, or we might follow a series of links to narrow down our focus.

While this might seem slower or more imprecise than searching, this is not the case. Or, when it is, that is a good thing! Searching often demands either that we keep our terms fairly vague, and trust the source’s algorithms to surface the most relevant results from what may be a sea of thousands of hits, or that we build an incredibly detailed and structured search, which may miss relevant material that simply worded things a little differently.

Browsing allows us to change our strategy from trying to sift out relevant hits from a large sea of information, to scanning a pre-filtered selection of already somewhat relevant material. Indeed, that is a good way to think of it… We can pre-filter (browse) or post-filter (search then filter) our results. Both techniques have their uses, but browsing can help prevent being overwhelmed with voluminous initial search results.

Browsing versus searching, and browsing then searching will be discussed throughout this book. It is important to keep in mind that in many sources, it is not “browse or search” but rather “browse then search.” Sources such as Westlaw Edge Canada allow us to browse down to a fairly specific subset of information, and then search. For example, while we could search for a phrase from the homepage, and see it in cases, articles, books, etc, if we know we are only interested in Ontario cases, we could browse through Cases to Ontario, before running our search.

Next, we’ll look at research plans, and how they can help keep your research on track and on point.