Article published in Proctor, the Queensland Law Society’s magazine for the profession
When embarking on a new research project, whether in a familiar area of practice or not, it is too easy to become lost in a labyrinthine exploration of the history of statute and common law until all semblance of the original purpose is lost.
Would-be researchers should never forget the (perhaps overly) basic principles of the ‘five Ws’ – who, what, when, where and why.
Always remember your audience. A client will not want a comprehensive review of the history of your topic, whereas this may be useful when preparing a memorandum to a supervising solicitor.
Your preliminary research, findings, further questions and general information-gathering is an important scaffold, but beware of over-informing your intended recipient. It is important to retain the notes and background material, but they may need to remain separate from your final research outcome.
After conducting research, it is equally important to ensure that research is concisely summarised for the beneficiary; it is not always necessary to recite the workings of the research itself when reporting the outcome.
Define the problem; and this is easier said than done. You should keep the original research question in mind at all times, but also consider the purpose behind the question – what is the research really meant to provide?
If, for example, the research is preparatory to a comprehensive letter of advice to a client, you need to ensure you examine the scope of your instructions. If the research is to brief counsel for further advice, you should ensure you state your assumptions. There may be an assumed ‘fact’ which might seem so obvious that you see no need to mention it, but unless it is equally obvious to the beneficiary of your research, an unstated premise could inadvertently misdirect or confuse you during research, or the beneficiary during review.
This is also the case when physically conducting the research. Make note of the parameters and keywords you use when conducting online searches. Are there any terms you are missing, or any terms that narrow your research too far? When conducting an online search and confronted by hundreds of possible results, it is common to narrow the search parameters to filter out extraneous material. You must remain aware, however, of the danger of overly narrowing your focus – remember the original question, not just the particular tangent you may be on at that moment.
Time management is critical when conducting research. It serves no purpose to get lost down the proverbial ‘rabbit-hole’ of an archaic argument that is of no practical use to your ‘who’. It is also important to consider the budget before embarking on significant research – how much is this research ‘worth’?
It is usually of benefit to clarify, prior to undertaking the research, how much billable time should and can be allocated to the task. As an early career lawyer, if you are unsure it is best to discuss this with your supervising solicitor.
Another ‘when’ factor is ensuring your research is period-appropriate. An action commenced in say 2003 may have come under legislation which has since been amended, or may have occurred prior to a prominent case decision. With a longstanding topic, it can be useful to construct a timeline of your research reference points, to ensure that you are examining the correct sources as they stood at the relevant time.
Always retain your sources. The best research need only be conducted once, if properly referenced. Make a note of the Act or Regulation, the section or rule, the case or practice direction. It may be useful to ensure a copy of at least the more heavily referenced material is kept on file, in case further reference is needed.
For new lawyers, it is common to forget that there are also offline resources available. Do not be afraid to talk to your colleagues, supervising solicitor or even counsel (depending on your relationship with them). It is often the case that senior solicitors have ‘been there, done that’ and may have tips of their own to help you refocus your efforts.
Always remember the ‘endgame’. What purpose is this research meant to serve for you, as opposed to your ‘who’? Is this preliminary research, for example to confirm a jurisdictional issue, or is it more comprehensive research for the foundation of a legal argument to be put forward?
Also, it may be advantageous to note research that may not support your basic premise, or that could require further examination. Quite often the original purpose of research changes or expands as a matter progresses, and issues that may have seemed irrelevant in the initial stages might be lost in assumptions related to the scope of the original research.
Of course there are no hard and fast rules when it comes to research, legal or otherwise, and each person should adopt or adapt whatever best complements their existing research technique.
Each of the ‘five Ws’ will have Venn-like overlap, but if the general principles behind each prompt are retained, they will assist in ensuring you make the most of your research.