Chapter 2: Supporting the Legal Research Process Online

2.1 Introduction: Why does online legal research need frameworks and checklists?

An early edition of the classic text by Christina Kunz, et al called The Process of Legal Research stated that good research — both as a product and a process — is characterized by the following attributes:

• It is correct: it accurately describes and applies the law that governs your client’s situation, and which applies as of the time of that situation.
• It is credible: it features authority that carries weight because of its nature and quality.
• It is comprehensive: it addresses the various issues raised by the client’s situation and incorporates an appropriate range of pertinent resources and authorities; it avoids missing an important case or other authority.
• It is cost effective (as well as time effective): the results justify both the cost of your time (i.e. your billable hourly rate) and any subscription costs that may be charged back to the client, in light of the client’s circumstances and available research options.^[1]

This is as true in the online environment as it was when the approach to legal research was print based. But to achieve this standard of quality, online research must also be systematic and organized. While researchers must contend new formats and source types — such as non-traditional secondary source types — the building blocks of good legal research remain the same. For example, legal research will almost always be more efficient if secondary sources are consulted before primary sources. In the contemporary online environment, where the volume of information may threaten to derail an orderly research process, it is more important than ever that information seekers use tools and frameworks to help anchor that process.

Tools such as research checklists for guiding and recording your search process, and frameworks to prompt you and support your thinking on aspects of the process, foster a focused and organized approach to information seeking in the online environment. They also promote patience and thoroughness, boosting your efficiency by helping you resist the urge to follow every tangent or hyperlink, or rush into information seeking before you have fully understood the problem and devised an appropriate strategy for finding relevant information.

In this chapter, we look at some of those tools in the context of online legal research and explain how they can help you achieve both a process and product that conforms to the above “four Cs” of good legal research.

2.2 The Wren Matrix: Foundational knowledge for information seeking

In 1988, Christopher G. Wren and Jill Robinson Wren proposed what was then a novel approach to teaching and learning legal research.^[2] Historically, most law school legal research courses focused on describing, often in great detail, the broad range of library resources and law books used in research. The Wrens argued in favour of replacing this bibliographic, “bibliocentric” approach with one that instead highlighted the relationship between lawmaking structures and the resources they create. They presented the process of legal research as intentional and systematic, “explaining to [learners] when [and why] to use which type of law book and then how to use it.”^[3] They noted that primary sources in particular — legislation and case law — have inherent characteristics that are the result of how these sources are created. This in turn affects how they are published, indexed, stored, accessed and used. The Wrens believed these characteristics should be made clear, so that learners might see these sources as part of a system of legal information, rather than as just sequentially accessed texts. As the Wrens noted, “the structure of legal research will make sense to you when you understand the relationship between the sources of law (courts, legislatures and administrative agencies) and the books in which you will find the law they create… In our view, it makes no sense to know what a law book looks like if you don’t know when and how to use it.”^[4]

Although we no longer rely on books alone as access points for the law, the Wrens’ process-oriented approach still encourages students to come to terms with the structures and processes of lawmaking. This in turn prepares them to manage the broad variety of published sources of legal information and lays the groundwork for learning effective techniques for locating and retrieving this information. These skills are as essential in an online environment — and maybe more so — as in a print environment. They can help researchers be more effective in the face of the volume and variety of online publication formats, databases, search interfaces, and access points for searching and retrieving primary sources of law. It makes sense for a researcher to understand how and why primary law is funnelled towards those online access points.

Another Amercian legal educator and scholar, Professor Paul Callister, took the Wren’s proposal and expressed it as a series of guiding questions relevant to primary sources of law:^[5]

• What is the lawmaking structure or institution of origin?
• What precursor documents are required or generated during the lawmaking process?
• Where and how is the law published or made known?
• After publication, where is the law indexed?
• What online access points, databases, or repositories exist for searching and retrieving the law?
• What specific tools or techniques are optimal?

These questions can help learners focus on the characteristics of legal information in an online environment and adjust information-seeking and problem-solving strategies accordingly. You will see these questions referenced repeatedly in this text. We believe these questions are central to a sound understanding of how primary law is published and organized in the online environment.

2.3 Using Legal Research Checklists in Online Research

Legal research checklists help you create a plan and track your progress when researching. They come in many forms.^[6] They may vary in the amount of detail provided or the number or names of steps contemplated. Some checklists encompass the entire process of legal research and analysis. Others zero in on steps involved in accessing core legal information — secondary and primary sources. They also vary in appearance and format. But no matter the version, a checklist is a tool that encourages a systematic, structured, and thorough approach to information seeking.

A framework is particularly important when researching online. It is common for researchers to go no further than the first page of search results before getting drawn into a tangent or taking a detour. We are easily distracted by interesting-looking hyperlinks which take us further afield until we have lost sight of our original research purpose. Before you know it, you’ve spent an hour online and you are no further along in seeking information for your task. Indeed, many students note that this particular concern — the likelihood that they may find themselves “going down a rabbit hole” during the online research process — drives their lack of confidence in their own research skill set.

A checklist is an antidote to that fear. It keeps your online information-seeking sessions anchored in your goal and helps you document your progress through any research task. This is particularly true of those versions that allow you to create a record of your work. By tracking each step in your process (for example, by using click path notation), you can stay efficient even if you are interrupted, need to revisit the task at a later date, or if another researcher must step in and pick up where you left off. In this sense, the use of a checklist not only keeps you on task, it also saves duplication of time, effort, and cost.

Approach research checklists with flexibility and a mindset open to adaptation. Keep in mind that in any checklist, not all suggested steps may be relevant to your specific research problem. You may want to customize your checklist for a particular task or to highlight the importance of certain online access points or resources. Similarly, although checklists are presented as a linear sequence of steps, research is an iterative process. You will benefit greatly if you cycle through certain steps — especially in the earlier stages of the research process, where you are working to articulate legal issues, gain a basic understanding of the relevant law, and identify relevant keywords. You will almost certainly repeat and refine your searches based on new findings and a growing understanding of the legal issue, and may even revise your research plan entirely. Nevertheless, any checklist you find, if used mindfully, is likely to prompt more structured information seeking compared to conducting research without one.

2.4 Extracting Keywords

If you look at any of the research checklists mentioned above, you’ll notice that “keywords” are mentioned as important in the early stages of the legal research process. What is the purpose of keywords? In the context of online legal research, many will say that we extract keywords so that we can build Boolean or natural language searches.^[7] But keywords serve other functions in the process of legal research, and extracting keywords can be an important part of conceptualizing your research topic and getting started on analysing your client’s legal issue. The act of keyword generation supports certain research techniques beyond keyword searching, including browsing (used with print and digital indexes, tables of contents) and subject-based searching (used with certain kinds of databases, indexes, and library catalogues). The process of extracting keywords also provides conceptual focus: it contributes to how you characterize and categorize the area(s) of law relevant to your client’s problem, a necessary aspect of issue identification in legal analysis.

There are many sources of keywords in the average research task. You can extract keywords from the client’s fact scenario, a client interview, and the lawyer who assigns you the research task.^[8] You can also extract keywords from documents in a client file, secondary sources, primary sources such as leading cases or governing legislation, preliminary web searches, or current awareness resources. No matter how you get them, however, and even if keyword searching will not be your primary search technique, extracting keywords is an effective way of conceptualizing and characterizing your problem in the early stages of research. It is a way  of contextualizing and understanding your research problem before you start to seek a solution.

2.4.1 A Framework for Extracting Keywords

Early-stage researchers sometimes struggle to brainstorm a rich population of keywords. One way to ease this process is to appreciate that keywords exist in several hierarchical “levels” or categories — ones that roughly track the way legal information is classified and stored in online databases. Different keywords, from different “levels” can be applied together or separately depending on the type of records that you are searching, since some databases are more effectively searched using certain types of keywords than others. For example, recall the database question, “what constitutes a record?” If you are searching across a full-text case law database, it will be effective to use more granular and specific keywords than if you are searching across a case digest database.

Since keywords differ in specificity and granularity, it is helpful to use a framework for extracting keywords that acknowledges this. One such framework focuses on three levels of keywords: primary, secondary and tertiary (abbreviated as 1y, 2y and 3y). This hierarchical framework identifies three categories of keywords, ranging from the very broad to the specific. Using this hierarchy to guide you in identifying and selecting keywords not only ensures a comprehensive approach to generating search terms, but also anchors your search terms in the scheme used by major legal research databases for organizing and indexing digitized information.

Primary keywords indicate major legal topics. You can think of these as being on the same level with words that describe typical law courses: contracts, immigration, torts, patents, criminal, labour, corporate, etc. These words describe in the broadest possible way the area(s) of law engaged by your research problem. When you generate a primary level keyword, you are classifying your research problem as belonging under one of those major topical areas. Sometimes, legal problems exist at the intersection of major topical categories, so you may have more than one primary level keyword associated with your problem. In other cases, specific legal concepts or issues within these large major topical areas may themselves be so legally significant — for example, negligence within the larger topic of tort law — that they also may be considered primary keywords. These are words that constitute the topmost level of the legal taxonomy and so are also used at the top level of the organization hierarchy: subject titles, top-level digest classifications and sometimes library subject headings.

Secondary keywords are legal concepts within the larger area of law described by the primary keyword. They nest conceptually within the category identified by the primary keyword. For example, under the primary word contracts, a secondary word might be breach (of contract) or consideration. Secondary keywords play a role in articulating the legal issues that your client faces, and so, generating accurate secondary keywords can be a tremendous boost to efficient searching.

Finally, tertiary keywords represent specific facts or situational elements associated with your problem. The acronym TAPP assists with generating tertiary keywords.^[9] TAPP stands for:

• T — Thing or object involved in the dispute
• A — Act or activity that led to the dispute
• P — Person or class of persons involved in the dispute
• P — Place where the event occurred that led to the dispute (which could mean jurisdiction, but which also might mean hockey rink or dark alley)

Be cautious when generating tertiary keywords, however. The TAPP acronym may keep you closely tethered to a fact scenario, which may in turn restrict the population of words you generate. Remember as well that synonyms are particularly important, not just for searching but also for conceptualizing your client’s legal issue. Certain key terms may be closely associated with a particular legal perspective on an issue. A balanced range of terms used to define the same issue, and to search for relevant resources, will return a more balanced range of results. Plan to spend some time generating synonyms for the search terms you have identified at the tertiary level.

2.5 Click-path Notation

Click-path notation goes hand in hand with a legal research checklist as a method of making your research more structured and systematic. It refers to a shorthand approach used to describe and record your online searches in detail. It is a way of tracking, either for yourself or for someone else, the actual series of steps or “clicks” you executed while searching for legal information online. In this sense, it is similar to the “bread crumb trail” you sometimes see at the top of a web page, but also includes reference to search techniques you used, like browsing, filtering, or using a Boolean connector, as well as reference to your search terms and connectors themselves.

The use of click-path notation is an effective means of ensuring you have an accurate record of your searches in a centralized location that is not limited to your search history in a particular legal research service.^[10] As with a research checklist, the click path is especially important in an online environment where it is possible to run search after search, often with the use of keywords, without being aware of how your search strategy or search terms are evolving with each subsequent search. The risk of wasting time and money is compounded if you have to leave off and return to your research task at a later point in time. In this situation, you may find yourself replicating your original searches without realizing it, including those that produced no useful results.

It doesn’t take much time to record a click path. Ideally, you would use click-path notation to record searches either on a legal research checklist under the relevant subheading (case law, legislation, secondary source types, etc.) or on a page appended to your checklist, which you regularly update. And, if you record your click path accurately, there is no need to record your results list. Anyone who replicates your click path — including you — will be able to generate the same results, capturing any records that were added to the database after your original search.

There is no standardized approach to recording a search using a click path. Since the point is to record or communicate your research process accurately for future reference, you should try to be consistent in what you record and how you represent the elements of your online search. Here are some essential elements that you should be sure to track for every search:

• The date of the search.
• The access point (the webpage or service where you started, include a URL if it is not obvious).
• Any sub-databases or tools used.
• Any specific search techniques used.
• Search terms (keywords), and Boolean connectors if used.

Here’s an example of a method for representing the elements of a search in click-path notation. This click path describes a case law search using Westlaw as the original access point. In this search, the researcher is looking for Supreme Court of Canada decisions within a certain date range involving spousal sponsorship for family class immigration where the genuineness of the marriage is an issue:

This click path represents each essential element described above. The process of the search — each “click” that takes the researcher to a new or updated webpage — is represented by a right-pointing angle bracket (>). Search techniques are recorded in square brackets with the particulars of the technique following, such as keyword + Boolean searching with the search string used, or filtering with a note as to the parameters applied to narrow the results list. If this search were recorded as a narrative instead of using a click path, it might look like this:

“On November 12, 2022, I searched using the Canadian subscription service WestlawNext. I navigated to the database for Cases and Decisions. From there, I chose the Supreme Court of Canada sub-database. In this sub-database, I performed a keyword search with Boolean connectors for cases in which the words spouse or spousal appear within three words of terms such as sponsor or sponsorship or sponsored and in which the record also contains a term starting with genuin, such as genuine or genuineness. From those results, I then reduced my population of results by filtering only for decisions rendered after 2010.”

A few things to note:

• Recording the date of the search helps you assess how old the results are. If a number of months have passed since you performed the original search, you might choose to rerun this search, delimiting results by date, to see if any new cases have been added to the database since the time of your last search.
• Specify the service you are using. In many cases, the three services will yield different results for the same search. If you are starting a search from a non-service access point — a library catalogue, for example, or a law firm’s website — identify the site by name and include the URL if it is not otherwise obvious.
• You can choose any abbreviations you wish — just be consistent. Here, the abbreviations “DB” and “SubDB” were used for database and sub-database respectively.
• Provide an accurate and replicable description of the search string, including both keywords and connectors. Recall that “search syntax” ­— the choice of connectors/symbols and the order in which they must be placed — is not universal; each service has its own. If this were a Lexis or CanLII search, the Boolean connectors might be different, even if the search was for the same information.

You won’t always use a subscription service as your access point, of course. Here’s an example of a click path for another search using Google as the access point:

In this case, the click path records the starting point — Google’s search engine — and it’s clear that the search was a brief natural language search with a phrase in quotes, which Google parses as a request for an exact result (even Google has a search syntax). The fact that this search returned no relevant results is also recorded, since this is useful information. The researcher now has a record of trying this phrase, with no luck, and can move on to try something else.

2.6 How do I know when I’m done researching?

There are some important milestones in the search process that every researcher can use to ensure they know when to stop searching. These are tried and true maxims, as relevant in the world of online information as they are in the print world. They are derived from the very structure of the Canadian legal system and the “rigid hierarchy that exists at the heart of the common law system”^[11] — one which transcends the nature of the research environment. Keep these milestones in mind to keep your searches focused and avoid wasting time looking in out-of-the-way online places that have little to no value in the overall process of good legal research.

• First, use a legal research checklist. In an online environment, the use of a checklist will help you to stay on track and recognize when you have already covered certain ground.
• Use secondary sources of all types (with appropriate critical assessment) to orient yourself to the law and to give you leads on relevant primary sources.
• Use authoritative traditional secondary sources such as treatises and texts of acknowledged experts and high-quality journal articles. It does not matter the format — print, looseleaf or online; it is the nature of the source here that is relevant.
• Be sure you understand the hierarchy of primary sources relevant to your research topic:
  • Look for legislation before you look for case law. If there is a statute that governs, the rest of your searches will be related to what you have found in the legislation.
  • Then look for case law from within your jurisdiction, either decisions that interpret and apply the relevant legislation or decisions based on common law principles. Choose cases that are binding and authoritative in your jurisdiction: Decisions of the Supreme Court of Canada; decisions of a Court of Appeal or a lower court in your jurisdiction; or decisions of the relevant tribunal or board.
  • Then look for case law that may be persuasive: decisions of Courts of Appeal outside your jurisdiction or decisions of lower courts and relevant tribunals outside your jurisdiction.
  • Use the foreign law of a closely similar foreign jurisdiction (U.S., U.K.) where on-topic jurisprudence or scholarly commentary exists.

If you follow this progression, moving through each element, then you will have covered all possibly relevant resources in the most efficient order possible. Further, once you have moved all the way from the first element to the last, that is your stopping point. At each step, if you have found relevant primary sources, then you must also note up what you have found before proceeding to the next element.

All of these, with the exception of foreign law resources, are discussed in greater depth in the coming chapters.