Utah Bar Journal

At a time like this, who in their right mind would think of doing research? After all, how could research possibly solve problems such as these? Fortunately for us, however, one enlightened individual did just that. He made a diligent study of all governmental systems, ancient and modern. He pondered their strengths and weaknesses, and contemplated their days of greatness and what had brought about their eventual downfall. Then he researched some more.

Based on the core principles he found in his research, he constructed a model of government. He then gathered with other men of influence and presented his plan. His name was James Madison. The plan he presented was the Virginia Plan, on which our constitution is based. The gathering was the constitutional convention, which adopted Madison’s plan, with a number of changes, as a new system of government. No one else had come prepared with such a proposal. Although some delegates from the smaller states hurriedly created an alternate plan in a desperate attempt to create more rights for small states, their plan was quickly discounted as inadequate since it did not have as strong a foundation of research as Madison’s plan. In short, research changed the course of history.

So Research Got Us A Constitution, But What Can It Do For Me?
One of the least appreciated and most frequently overlooked tools in the attorney’s arsenal is that of legal research. While all attorneys know how to do it (or at least think they know how), and frequently engage in it in some fashion during their practice, surprisingly few ever come to understand how powerful it can be.

Creative and thorough research can make or break your case. After all, how can you lose if you have a dozen cases, directly on point, supporting your position? Research will make a strong case unbeatable. Even if your case is not that great, referring to cases and other legal sources can give it added strength. Indeed, research in a mediocre case will tell you which strong areas to emphasize, and which weak ones to avoid. And if your case is extremely weak, research will give you the basis for a heart to heart chat with your client that may save you both a great deal of embarrassment.

While research at all stages of a case is vital, it is particularly important to do research early in the case, before filing the complaint or answer. Not only is such preliminary research required by Rule 11, but it will also help you know where you are, and where to focus your discovery – and whether you even have a case at all, or should try to settle. You should never spew causes of action or defenses in your pleadings without first verifying them with legal research.

Many attorneys fail to realize how devastating things can be if research is not performed. Consider, for example, the case of State v. Moritzsky, 771 P.2d 688 (Utah App. 1989), in which a criminal defendant prevailed on his ineffective assistance of counsel claim because, as the court stated, “it appears to us that counsel merely overlooked the statutory presumption by failing to check the ‘pocket-part’ of the Utah Code.” Id. at 692. Or consider the following thoughts of Justice Zimmerman from his dissent in Kaiserman Assoc. Inc. v. Francis Town, 977 P.2d 462 (Utah 1998).

This case is before us only because [counsel] failed to do even minimal legal research before garnishing Francis Town’s assets ... [B]asic legal research illustrates that governmental entities are exempt from garnishment proceedings. It may be the case, as [counsel] argues, that the governmental immunity from garnishment is little-known. This is especially true for attorneys who have done no research ... [T]he fact that the statute is not common knowledge is no excuse for failing to conduct the basic research which would reveal its existence.”

Id. at 466.

While legal research can help avoid a scathing rebuke such as this, there is a more serious and basic reason it should be performed. If not, the attorney may face a malpractice claim or Rule 11 sanctions. In Taylor v. Estate of Taylor, 770 P.2d 163 (Utah App. 1989), the Utah Court of Appeals noted that Rule 11 requires at least some inquiry by the attorney into both the facts and the law before filing pleadings or motions. In Taylor, the court granted Rule 11 sanctions, stating that the client or his attorney failed to properly research the case. The court remanded to the trial court to determine whether the client or his attorney should pay the sanctions. Id. at 170-71.

Legal Research May Save My Skin. So, How Can Everybody In My Firm Do It Better?
The remainder of this article discusses a four-step practical approach to accomplish quality, effective research. These four steps are incredibly simple, and amazingly under-used. The steps are as follows:

1. Be sure you are researching the right question.
2. Put some time into research, and verify your conclusion.
3. Don’t overlook important sources.
4. Stop and rethink your original question often. Has it changed?

Each of these steps will be discussed in turn.

Be Sure You Are Researching The Right Question
This is probably the most important and least recognized point for solid, quality research. Usually, most attorneys think they already know the question that needs to be researched. (Indeed, many think they also know the answer too, before doing any research). But experienced researchers know that a careful evaluation of the question about to be researched may make the difference between average research findings, and those that will give you a winning argument.

Consider for example that you represent a client making an insurance claim for illness caused by mold in his house. The insurer denies coverage, claiming that mold is a pollutant excluded under the policy, even though mold is not specifically listed as a pollutant. Your initial gut reaction would be to research cases about mold as a pollutant, right?

While you’ll find some great cases, you’ll be missing out on research that would make all the difference in your case. You need to take the time to carefully think about the question. What is mold anyway? A by-product of moisture, right? What is moisture? Water. Is water excluded under the policy? Not likely. If mold exists, it had to be caused by water. Harm caused by water is therefore what you really want to be researching for. And if you do, you will find the case of Alf v. State Farm, 850 P.2d 1272 (Utah 1993), which does not mention mold and therefore would not have turned up under your other search, but which is directly on point in your case. Alf describes the “efficient proximate cause doctrine,” under which the insurer is still liable even if mold is excluded under the policy, if water was the real cause of harm and the policy has no “lead in” clause.

As this example illustrates, it is crucial to make sure you are researching the right question to start with. You need to think carefully about your case for awhile, and what you are really trying to find. Trust your instincts. If some claim in your case seems inequitable or wrong, or if you have a gut feeling that something is there but you are not sure what, trust your feeling and articulate it as best you can in your computer search terms.

The average attorney will dive into research without thinking. Don’t yield to this temptation. Spend the time to just sit and think about your case, to know what question you should research. Charles Schulz, creator of the famous Peanuts comic strip, said that when people came to where he was working they expected to see him drawing, so he would grab a pen and doodle. But when they were gone, he would gaze into space, seeming to daydream, and do his most important and creative work.

Put Some Time Into Research, And Verify Your Conclusion
Quality research takes time. Few researchers can find the answer to a complex legal question in an hour or two. If you rush the research, you will probably miss something. Of course you must be mindful of your client’s pocketbook and try to use your time efficiently. But your client must also be told that the surest way to victory in his case is to spend the time needed to do the research.

Consider for example that you are asked to research an issue about gravel pits. The city will not allow your client to extract gravel from his newly acquired property, even though extraction occurred there in the past and the adjacent property has an active gravel pit. Your initial research uncovers the case of Gibbons & Reed v. North Salt Lake City, 431 P.2d 559 (Utah 1967), which is helpful in indicating that further extraction should probably be allowed. However, you sense that you need to find more. If you are willing to put in the time to do the research, you will discover the “diminishing asset doctrine,” which allows expansion of a mining operation throughout the parcel and sometimes across adjacent parcels, even where there is a lapse of several years between extraction efforts. This doctrine may make the difference in your client’s case.

There is a great temptation for those who are impatient or inexperienced at research to stop once they think they have the answer. Do not yield to this temptation. While you should not research endlessly, and it is an art to know when to stop, you should not end your research until you have found the majority position, and verified that it is followed in your jurisdiction.
While not all research projects require discovery of the majority and minority positions, you should always keep researching until you verify that your findings are still followed in your jurisdiction. You should especially make sure that the cases you have found have not been overturned by the legislature, as often happens when the legislature dislikes a holding by the courts. Therefore, you should take the time to search the codes after completing your caselaw research, since recent statutory changes often cannot be found in any other way.

Remember to be thorough and not stop until you have found and verified the answer. You can almost always find a case that supports your position, but you must find more. Find the cases that are against you, that your opponent may or may not find, so that you will know how to prepare for what may be thrown your way. Don’t stop until you find the majority rule and confirm that it is good law in your jurisdiction. In short, don’t stop until you become an expert in the area of law you have been asked to research.

Don’t Overlook Important Sources
Most attorneys when faced with a research question think primarily of searching case law in Lexis or Westlaw. However, there are a number of other sources that can greatly assist the researcher in quickly finding what he needs, and which sometimes will make all the difference in his case.

Where the question to be researched is a general one, it is often helpful to start by looking in Am. Jur. 2d or the American Law Reports (ALR). Consider for example that you are asked to find whether a buyer who sues for specific performance of a contract is also able to request damages, or if he is limited to specific performance as his sole election of remedies. While you could surely find the answer in case law, a quick look in 71 Am.Jur.2d Specific Performance § 235 gives the answer: “it is not erroneous as a matter of law to award both damages and specific performance.” Subsequent sections of Am. Jur. 2d refer to several Utah cases that support this proposition in respect to buyers’ claims, although the law is different in respect to sellers’ claims.

The ALR can also be a powerful tool for the researcher since it contains summaries of the majority and minority positions of the states on most legal issues. The beauty of the ALR is that someone else has already done the research for you. In addition, hornbooks on various fields of the law can also be helpful, such as Utah Real Property Law by Thomas and Backman, and Utah Evidence Law by Kimball and Boyce. There are also a number of excellent treatises that have become preeminent in their field, such as Powell on Real Property and Corbin on Contracts. Likewise, the Restatements of the Law can often be helpful, and are often quoted by the courts. Finally, regional digests such as Pacific Digest compile cases by topic, and can often be a quick way to find a case in your jurisdiction that would take much longer to find by a web-based search. If you can’t find a quick answer to your question in one source, switch to another.

Annotated codes should always be consulted when reviewing statutes. In addition, a search for keywords in the Utah or federal codes online can sometimes turn up surprising results. The Utah administrative rules also provide valuable insights into such things as definitions of terms and administrative practices.

Sometimes even sources outside the statutes and rules can provide valuable information to the researcher. Consider for example that you are asked to find out more about reservation agreements for unplatted subdivision lots which are soon to be offered for sale. While Utah Code Ann. § 10-9a-611(1)(a) says it is unlawful for a developer to sell lots before they are platted, it does not mention anything about reservation agreements. Interestingly, reservation agreements are also not mentioned in any Utah administrative rules, and there appear to be no cases that define just what they are. It would be easy to stop your research and conclude that reservation agreements are a nebulous creation by developers that can be written any way they want. However, such is not the case. The Utah Division of Real Estate has clearly articulated what a reservation agreement should be, and what it needs to say. Reservation agreements are discussed in the August 2001 edition of Utah Real Estate News, which can be found online on the website for the Utah Division of Real Estate. While this information about reservation agreements does not have the full force of law, it is still extremely compelling information about reservation agreements.

Stop And Rethink Your Original Question Often.
Has It Changed?
When involved in extensive research, it can be easy to lose sight of the goal and become mired in time consuming, unnecessary research on needless details. To avoid getting sidetracked, it is helpful to stop researching occasionally and review what has been found so far, to confirm that you are still going in the right direction. It is extremely disconcerting to realize (and rather difficult to explain to your client) that you have spent hours researching the wrong question.

At these times, you should rethink your original research question. Usually the results of your research will be different than what you expected. Based on these results, you may need to readjust and change the focus of your research, and pursue the new leads that you have found. You should also verify that your research efforts are being productive, and what further research is necessary.

Consider for example that you have been asked to research the “after acquired title doctrine” found in Utah Code Ann. § 57-1-10. Under this doctrine, a real property conveyance by a non-owner is valid if he later obtains title. Your hope is to find a way around the doctrine in respect to an easement signed by a mortgage beneficiary who later foreclosed and obtained title. After some initial research, you stop to reassess your case in light of the information you have found so far. Upon reviewing your research, you see the suggestion in some cases that the signing party should be identified as the grantor in the conveyance. You notice that your easement does not identify the mortgage beneficiary as the grantor. Rather, the grantor is identified as the then-owner, and the mortgage beneficiary only signed the easement at the bottom. If you conduct further research on this new issue of identification of the grantor you will find the way out that you were looking for.

Again, it cannot be overstated that you must be clear on the question to be researched. Your research will usually give you new ideas of different avenues to pursue. You need to stop often to reassess where you are, and where you are going, to take full advantage of all of the new ideas that your research is generating for you.

A Word About Factual Research
This article has focused so far only on legal research. However, no matter how successful your legal research is, you may face serious problems if you are not clear on the facts of your case. It is vital that you conduct factual research in your case before you get too far into it. This can not only prevent potential embarrassment in the courtroom, but will often provide insights or suggestions about what legal research you need to perform.

For example, consider that your client is a property buyer who wishes to enforce a Real Estate Purchase Contract (REPC) that the seller does not want to honor. You need to look carefully at a number of facts in relation to this claim. Are the seller and the buyer both identified in the REPC? If so, under what names? If one is an LLC or similar entity, does the State Division of Corporations show that it exists as an active entity? Did both parties sign the document? Who wrote it up? Was each page initialed? Was there a reservation agreement, or an addendum? If the property is a lot in a subdivision, was the plat recorded before the sale? What deadlines were contained in the REPC? Was the REPC modified? Was there some aspect of the transaction that was so obvious to both parties that they did not feel the need to write it down?

There are a number of very basic, simple fact questions such as these that should be verified in every case. A good client will not be offended if you ask these types of questions, since they will know you are just doing your job. And it is surprising what your factual research will sometimes uncover, both good and bad. Your factual inquiry should create a clear picture of the case in your mind, including such things as the time of day, or the day of the week when things took place, any witnesses who saw the events unfold, any documents in existence that describe what happened, and what was in the minds of the parties when the events occurred. Knowing these facts will help you in deciding what direction your case should take, and where to focus your research efforts.

Too often attorneys merely accept without question the facts presented by their client or asserted by their opponent. Don’t accept and react; investigate and create. Then use research to reverse the presumption that the other party is trying to put into the mind of the judge. Find a way to turn your opponent’s allegations 180 degrees back on them. Use the facts and the law discovered in your research to paint a picture that shows that your client should prevail. Usually there will be something in the facts and law that will help you do this.

Conclusion
Research is like watching a mystery movie unfold. You never know quite what will happen, or what is going to turn up next. Research can be a grand adventure of discovery, and a creative exercise that uses all of your wits, experience and talents. Never sell yourself short by failing to do the research. If you don’t do it, your opponent probably will, and will get the best of you.

Truly, the strength is in the research because the research can make or break your case – and usually will.