Hi, I'm Beth Wilensky, legal practice
professor at the University of Michigan Law School and today we're
going to talk about legal research. This video contains an introduction
to the very first step of the legal research process. Now to learn how to
conduct legal research, you really need to learn
four different things. First, how do you think
about a legal problem? Then you'd need to learn the nitty gritty
information about how law is collected. Where do you begin your legal research? And then how do you use those
resources to efficiently conduct and create a research plan and
follow through on the steps. This video is going to
cover just that first step, how do you think about a legal problem? To do that,
I'm going to talk you through how I would go about the thinking
stage of a research problem. First I want you you to
watch this short news clip, it's a little over two minutes to
learn about a hypothetical client. Now imagine that Hunter's parents
have come to me seeking legal advice. They want to know whether they can sue
Hunter's school over its insistence that Hunter change his sign language name. In legal terms they want
to know whether they have a valid claim against the school. Whether they are likely to win a lawsuit. So let's imagine that I talk
with them in my office and then I'd send them on their way and
arrange to meet with them in a week. And in the meantime, I plan to research their legal issue to
see if they have a viable legal claim. Now, the first thing you always
want to do is sit and think. Even though your instinct is likely
to be to turn on your computer, to open up Westlaw, or Lexis, or
another legal research site, and start typing stuff in, and
start searching right away. The time you spend at the beginning of
the process just thinking through your client's facts is going to be time
well spent for the entire process. It's going to make your
research much more efficient. So how do you think through a problem? I like to think of it as being like
a journalist, asking questions. You want to ask the who, what, when, why, where, and how of your client's situation. So I'm gonna talk you through what I mean
by that using Hunter's case as an example. But first, one thing to keep in mind and
to watch out for as I'm going through the who, what, when, why, where, and how
is to remember that you usually wanna look at a problem from both a very close up,
detailed oriented perspective. But also to pull back and
look at the big picture. And I'm going to show you,
as I talk through Hunter's problem, places where I've thought about his
facts in a very specific, detailed way. And then pulled back to
think about it more broadly. Both of those perspectives
could potentially be helpful when I'm conducting my research. So let's start with my who question. So it may seem obvious who the parties
are here, they are Hunter Spanger and his parents on the one side, and
the school on the other side. But I wanna think about
the relationship between the parties. So what I mean by that is, here,
I have a student, and I have his parents. And I also have a school. I wanna think broadly, though. There's more than just Hunter,
and his parents, and the school. There's also the school district, which is
a separate legal entity from the school. There's a principal, there are potentially
teachers who are involved, the who might even include other
students and parents in the classroom. For example, one of the things I
might be interested in is whether other parents have complained about
Hunter using his sign language name. So that's thinking broadly about the who. But I also wanna think specifically
within each of my who categories. So for example, I know that one of the
parties I'm interested in is the fact that it's a school, but
I wanna be more specific than that. Is it a public school or a private school? Here it's a public school. It's a preschool as opposed to
an elementary school, or a middle school, high school, or even a college. Now, keep in mind that I don't know
at this point whether any of those distinctions are going to have
legal relevance, and that's okay. I'm just brainstorming all the different
potentially relevant facts. Why that's helpful? That's helpful for two reasons. First, those kinds of things are likely
to help me guide my research, as I start and
go through the research path. Second, those kinds of detailed ways
of thinking about the facts are likely to help me recognize potentially
relevant case law when I come across it. As opposed to discounting something that
seems like it might not be relevant. Now we have the what. So, again the what might seem kind of
obvious here, this is the what happened. Because the thing that
happened is that Hunter and his parents were told that he needed
to choose another sign language name. So, that's a good start in
thinking about the what. But, one thing I wanna make sure
I do is think about the what from both perspectives, from my client's perspective, but also
what the other side claims is its story. And we know from the video, for example,
that the principal has suggested that his story, his view of what happened
is different from that of my client. He says that he has never required a
student to change his sign language name. So I wanna make note of that. I'm also kind of intrigued by
his use of the word required. It suggests to me that maybe he
could have encouraged or asked, or even pressured a student to
change his sign language name. So as I'm conducting my research,
I might wanna be on the lookout for situations in which that distinction
mattered or it didn't matter, for example. Where it's possible
the courts have said that it doesn't even have to be a requirement. If a school is encouraging or
pressuring a student to do something, that would be treated like
being required to do something. So other ways to think
about the what broadly. I've been thinking about this as
a claim about a deaf student who wants an exception to the school's policy so
that he can use his sign language name. It's very helpful though to pull back and think about how to categorize
who he is and what he wants. And here's what I mean by that. He's not just a deaf student who wants an
exception to the school's policy because of his disability. I can also think of him
as a disabled student who generally wants an exception
to the school's policy. Why is that helpful? It means that as I'm conducting research, I'm more likely to recognize that other
cases involving students with completely different kinds of disabilities could
be very analagous to Hunter's claim. And it's gonna help me spot and
recognize the significance of those cases, whereas if I'm just focused on a deaf
student who wants to use his sign language name I might miss
the significance of some of those cases. Then I can also think about this more
broadly as a question of disability law on the one hand. But also potentially a question
about education law. So I want to make sure that in my notes,
and by the way, as I'm thinking through all of these
things, I'm taking notes on all of these potentially significant ways to
look at my client's situation. I want to make a note that I might want
to approach this from both the disability angle and from the education angle
because again at this point, I'm not sure which path is
likely to be most fruitful. Finally, for what,
I wanna think about what my client wants. Does my client want money damages? Does my client want an injunction
requiring the school to allow Hunter to use his chosen sign language name? Does my client want a broader injunction
that would prohibit the school from ever telling a student in the future that
he or she can't use a sign language name? I wanna think about those things, because
I may need to conduct some research on which of those remedies,
if any, are available. So now we have the when. So there are lots of cases
where the when questions you might wanna to ask seem obvious. For example where the timing of events
is at the heart of the legal claim or defense. If you have a case involving a potential
statute of limitations issue the when is highly significant. So what do I mean by
statute of limitations? That's a situation where there's
a question about whether the party bringing the legal claim, the party filing
the lawsuit has waited too long to do so. Because lawsuits have to be
brought within a certain amount of time of the significant
underlying events occurring. So in that circumstance,
the when is an obvious question to ask. Similarly, you might have a contract
claim where there's a dispute about whether one of the parties has
fulfilled its obligations in the amount of time that the contract requires him
to have fulfilled his obligations in. Again, there the when questions
will probably bubble to the surface pretty easily. But lots of cases have other potentially
significant timing questions. It's helpful to think of them
in a couple of different ways. First, you might think certainly just
in terms of days that have passed. So in Hunter's circumstance for example, I might be interested in when
he started using the sign language name. In the video clip, one of his parents said that they've been
using it to identify him since birth. That might be significant,
as opposed to, for example, a situation where he had just
recently started using that name. I'm also interested, for example,
in when the school informed Hunter and his parents that he couldn't
use the sign language name. Did they inform him immediately
on the first day where they first saw him use this name. Did a couple of weeks go by
before they told him that. And if so maybe those three or four weeks
or more went by without incident and all the sudden they said,
by the way he's got to change his name. Those are the kinds of when questions that
I think about when I think about days. But sometimes the time of day that
something happened might be relevant. Sometimes the amount of time
it took something to occur, from start to end, might be relevant. So those are other potentially
significant when questions. Now, let's talk about why. So here is the key thing to keep in mind,
every party has a why. That's the reason it
took the actions it did. Just as in the what,
set of questions that I ask, I wanna think about the what happened
from both my client's prospective, and the other sides prospective. When I'm thinking through the why, I wanna think about why each
party acted the way it did. Because again this may help me
identify potentially helpful and efficient legal research paths, and also identify potentially relevant
case law when I come across it. So for Hunter, I want to know
why it's important to him and his parents that he use his sign language
name that they have chosen for him. And again, this might seem obvious, right? It's the name that he
has used since birth. It's what he's most used to. It seems really unfair to say to him,
you have to change your name and not say that to other students. That does, though, suggest to me that there might be
more than just a disability claim here. I wonder if there's potentially
an equal protection claim? Because Hunter has been told
he has to change his name, and other students have not
similarly been told that. But also thinking even more
broadly about the why. I think about the expressive
function that our names have. That people choose their names, or
parents choose names for their kids, because they think that, they like
the way they sound aesthetically. They think it expresses
something about their child. It can be a very personal decision. That gets me thinking that maybe there's
even a potential first amendment claim that I might want
to pursue in my research. Now I wanna think about the school's why. Why does,
why did the school take this action? Does the school have a written policy? Does it have an informal policy,
a formal policy? In the video, there's mention of
the zero tolerance weapons policy, so I wanna know a little bit more about that. Is the school following some state or federal law which requires it to have
a zero tolerance weapons policy in place. Those kinds of things might be highly
significant to whether the school's allowed to take the actions that it did. So next we have my where questions. So here again there's some
obvious where questions. I wanna know what state
the events took place in. Here that's Nebraska, so
the where is pretty easy. That tells me that when I start conducting
my research I'm probably gonna wanna look at Nebraska law, and
also probably federal law. Because it's likely that there is federal
law that effects a disability claim, like this one is potentially likely to be. And as I mentioned, I'm also
interested in even possibly pursuing due process of first amendment claims,
at least at the research stage, so those would be federal claims as well. Sometimes the events took place
across several different states. So I need to figure out what happened in
which state because that can be highly significant to which
state's law might apply. And then there might be other, where,
questions depending on a situation. Maybe it matters that, for example,
here that it's a public school and not a private school for example. In another case, I might be interested
in the fact that the where is a military base, or a doctor's office,
or a retail store. Those are other where questions
that I might make note of when I'm thinking through my research plan. And finally the how questions. These are usually due process questions,
but they aren't necessarily. But here, for example, I'm interested in how
the school implemented this restriction. Did it just tell Hunter's
parents informally, that he's not allowed to use
the sign language name anymore? Did they send him a letter? Did they send him an institute
of formal process? Did Hunter's parents have
any chance to appeal or present their own side or bring in
someone to help them argue their case? These are all how questions that might
be relevant as I conduct my research. So now that I have gone through
this thinking process I am probably about to start my research. There are a few other things
that I want to make note of for you first to think through what
question you've actually been asked. In the example that I have given you I'm
imagining a client coming to me with a big open-ended question and me, kinda thinking
through all of the different things I might want to pursue in my
research on behalf of this client. It is often, however the case that you
are given a much more discrete question. Whether it's because, someone that you work with asked you
to go research one small piece of it. For example, you could imagine that
maybe you work at a law firm and someone has asked you on behalf of Hunter
to research just the discrete question of whether he can obtain money
damages if he wins a case like this or if he's only entitled
to injunctive relief, to an order that requires the school
to let him use his sign language name. So if you been asked to research just that
question, it's still helpful to conduct a very abbreviated version of the who,
what, when, why, where, how inquiry. But you don't want to allow yourself
to get to distracted by some of those other questions. And the same is true, for
example, in law school class. If you have been given an assignment
that asks you to focus on one thing and there are a lot of other things come up. You wanna use good judgement in thinking
through what kinds of inquiries are likely to be helpful in answering the specific
question that I've been given. And what kinds of inquiries
are possibly interesting, but not the best use of my time. Finally, you don't wanna try to
tackle all of these things at once. I've thrown a whole lot of stuff out here
that I would research on behalf of Hunter. In the next video that you
will see about legal research, you'll see some different
ways to get started. But I might have to break it up and
focus on just one piece at a time. And start, almost, a new research process over when I want to
tackle each specific part of the question. So, for example, I might start out focusing
on the narrower disability question. Can a school require
a disabled student in these circumstances to change
his sign language name or is a disabled student entitled to
an exception to the school's policies, and under what circumstances might a disabled
student be entitled to such an exception. And then, once I feel like I've
done a thorough job of researching that maybe I'll go back and I'll
Investigate the First Amendment angle. And maybe I’ll investigate
the Equal Protection angle and then take on some of the other questions. But that’s the basics
of how I would sit and think through a legal research question. Again before I turn on the computer,
before I start typing anything into a search box, before I go to the
library or even start reading a treatise, these are all the kinds of things
that I want to have thought about.
