There is no right or wrong way to do legal research but there are more effective and time efficient methods of doing so. No matter what platform you are using or why you are doing research, these strategies will help ensure that you not only find what you’re looking for, but that you understand what you found and how its applicable.
The reason the Research Diamond is called the Research Diamond is because all research needs to start narrow, grow broad, and then become narrow again to find your full answer. The narrow portion at the top is the starting point and, as there is only one starting point, is relatively narrow. (Think about distinguishing a case from your adversary or a client raising an issue.) The middle broadens out the most as in order to get a full picture of the law you need to find the proper statute, rule, or case in order to then be able to narrow down your issue. (Think elements of a cause of action.) Once you find the broad legal theories associated with your issue, you can begin looking for your narrow sub-issue. (Think is this specific act fraud?)
While those are all of the pieces of the Research Diamond, there is one piece that needs to be considered out of order: the bottom tip of the Research Diamond needs to be considered right after the top tip. This means that you need to know where you need to get in order to be able to get there. This does not mean you need to know the answer (that would just defeat the purpose) but rather you need to know what question you are looking for. At our firm, we ensure that we cover all of our basis when conducting research and that we get the right answer, not necessarily just the answer that we want to see.
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The Top Tip of the Diamond
The top tip of the Research Diamond, or the starting point, requires the researcher to identify exactly where they are starting their research. By this I do not mean whether you are using Westlaw, Lexis, Google, Bloomberg, or some other research platform. What I do mean is the posture of the research. Are you starting from scratch, researching an issue raised by opposing counsel, or something else? Once you determine your research posture, you need to determine what question you are looking for an answer to.
The Middle of the Diamond
The middle of the Research Diamond requires you to determine what the baseline or standard law is for the general topic you are researching. This is one of, if not the most important step in conducting your research. Without knowing what the general standard or law on the topic you are researching, it is impossible to know that you found the right answer to your question. Consider when you are researching a general topic such as a whether someone violated a particular statute or set of statutes.
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While you may know that someone cannot use your client’s trademark on their product (a rather obvious tidbit), you may not know exactly what remedies are available in an instance where someone else does use your client’s trademark. (Now of course if you are a trademark attorney you had better know what remedies are available to your client but this is just an example). Without checking the rule, you may not know that you are entitled to the defendant’s profits from using the mark.
Therefore, the danger in skipping this general step is that you may think, in a trademark case, that you can only get an injunction and direct damages and go straight to researching how to get an injunction or how to calculate your damages without realizing that you also need to research how and when you may calculate the defendant’s profits. However, because you utilized the Research Diamond, you did not miss everything that you need to look into.
The Bottom Tip of the Diamond
One question I have gotten when discussing the Research Diamond with my colleagues is: “How do you determine what the bottom tip of the Research Diamond is before doing the research if that is the point you are researching?” The bottom tip of the Research Diamond is not the “answer” you are looking for but, rather, the question that you need an answer to. If you knew the answer, there would be no need to conduct the research. But, when you know a question, such as “What remedies is my client entitled to if someone infringes on their trademark?” as opposed to “How do I calculate if my client was damaged by trademark infringement?” In the later example, you are assuming the proper remedy is how was my client damaged and not asking what are the remedies for infringement.
One of the most important things to remember when conducting research is to not cut corners. Good research, including simply confirming a belief that you already have, takes time.
Brian Grossman was an attorney at Balestriere Fariello, a trial and investigations law firm which represents clients in all aspects of complex commercial litigation and arbitration from pre-filing investigations to trial and appeals. You can reach firm partner John Balestriere at [email protected].