This article will explain how some of the traditional legal research resources you learned about in law school (going back to the basics) can also be used for background and fact-finding research. I’ll also discuss some resources you might not have learned about in law school because they came on the market after you graduated. This article will focus only on free and low-cost resources.
Free Case Law
One of the first traditional legal research resources you learned about in law school probably was how to use a print case digest to find precedent. Later, you learned to find precedent with online resources. What you might not have learned, however, is that case law resources can be used to gather background information about people.
Judges, attorneys, and parties. For example, if you need to learn about what types of cases certain judges have heard and how they ruled, or what types of cases certain attorneys have been involved with and what kind of outcome they had, or whether a certain person is litigious, you can use case law databases to search by using a person’s name as a keyword. If you have access to a case law database that offers “field” searching, where you can enter a judge, attorney, or party name into a “field,” this would be the preferred research method. For example, a “judge” field search ensures that your results will include only a judge with that name, and not an attorney, party, or witness with that same name. Not all free databases offer field searching, but Casemaker (casemaker.us), which many attorneys can access for free as a bar association member benefit, does. You just need to know to click on Casemaker’s “Advanced Search” tab to perform field searching.
If you don’t know whether your state bar association offers Casemaker as a free member benefit, visit your bar’s website. If the bar does offer this benefit, it is usually noted on the top right side of the home page, or it could be hidden behind a “member” tab. If your bar does not offer Casemaker as a free member benefit, it may offer access to a similar database, Fastcase (fastcase.com). However, Fastcase lacks field searching. Some of you might not be aware of Casemaker and Fastcase because they are relatively new on the marketplace (compared to Lexis and Westlaw), and some states have only just recently begun offering them (e.g., the New York State Bar Association began offering Fastcase only in the past year).
If you visit Google Scholar’s “Advanced Search” menu (tinyurl.com/43s4zz2), where you can search cases and articles for free, notice the “Return articles authored by” field. Although it appears to relate only to authors of articles, you can actually enter a judge’s name and the case results will include the named judge. However, the results are imprecise because that particular judge may just be part of the panel that heard the case and not necessarily the one who authored the opinion.
Expert witnesses. If you need background research about an expert, whether to learn more about the opposition’s expert or an expert you are considering hiring, case law research can be productive to learn which cases a particular expert may have testified in or whether that expert has been challenged. Simply use the expert’s name as your keywords. If the name is common, add a keyword describing the area of expertise. Unfortunately, none of the case law databases offer an “expert” field search, so use this “name as keyword” search at any one of the case law databases to which you have access.
Searching with keywords that describe the expertise can also be a good way to locate an expert if you don’t already have one in mind. To conduct this type of case law research for free, you can once again use Fastcase and Casemaker. For those who do not have access to those databases as a free member benefit, try using Fastcase’s free app or Google Scholar free database (scholar.google.com).
Locating and reviewing expert witnesses’ articles should be on your research checklist because you might find inconsistent statements that you can use for impeachment purposes. You should also search for articles authored by your own expert so you can be prepared if they also have made inconsistent statements. A free Google Scholar search will provide links to the expert’s articles (not all articles are free, however).
Whether you are searching Google Scholar for cases or articles, the search engine is a bit tricky to use. When you click “Articles” from the home page, your results will only include articles, but if you click “Case Law,” your results will include both cases and articles. You can filter to only cases or only articles from the left-side column of the results list. Google Scholar also offers an Advanced Search menu. Although the Advanced Search menu appears to be geared to searching articles (e.g., the keyword and phrase search boxes are labeled “Find Articles”), the results will retrieve both articles and cases together.
Before you pay for an article that you find on Google Scholar, be sure to “pay” a virtual visit to your public library because many public libraries offer their library patrons free remote access to reams of full-text articles from scholarly and popular journals, among other databases. However, before you can enter this goldmine of free data, you will need to input your library card number.
Non-legal topics. Google Scholar and remote library databases can also be used to help lawyers get up to speed on non-legal topics. For example, a personal injury lawyer might need to learn about a specific disease or medical procedure. Finding an article on the topic would be useful, and both Google Scholar and your free remote library databases can be used for this purpose.
Free and Low-Cost Docket Databases
Because not every case gets to trial (and even if it does, it doesn’t always get reported), don’t overlook searching dockets to gather background information about people and companies.
Due diligence. I’ve been consulted on several malpractice cases where a failure to conduct docket searches has harmed a client. In one case, the attorney was tasked with conducting due diligence for a client who was considering investing with a particular person. If the attorney had conducted a federal docket search, he would have found a bankruptcy filing and dockets indicating that the subject of his search had been sued for fraud and was involved in a criminal matter. Because most docket databases also include case documents, you can download the complaints, orders, and opinions to learn more. To conduct the most comprehensive federal docket search, I used the PACER “Case Locator” (pacer.gov/pcl.html) to search all federal courts together. I typically conduct federal docket searches at PACER because its per-search fees are lower than Westlaw (westlaw.com), Lexis (lexis.com), or Bloomberg Law (bna.com/bloomberglaw), but some attorneys prefer these other vendors because they offer more sophisticated types of searching.
If you’re wondering if there is anything even lower in cost than PACER, the answer is the free RECAP site (archive.recapthelaw.org), which offers access to millions of federal dockets and case documents for the U.S. district courts (civil and criminal) and the bankruptcy courts. However, RECAP does not include every docket that PACER does (RECAP’s list of pleadings will indicate “Buy from PACER” when a particular pleading is not available free at RECAP). Also, RECAP does not include any dockets from the court of appeals. Did you notice that RECAP is PACER spelled backward?
You might also want to conduct a state and local court docket search to locate some of this same investigative information. Whether these dockets are available at the court’s official site will vary from jurisdiction to jurisdiction, as will the fee to search them (some are free). Westlaw, Lexis, and Bloomberg Law offer various state and local dockets.
Service of process. To find an address to serve someone, consider running a docket search. Sometimes a recently filed docket entry (typically the complaint) can provide you with a fresh address.
Google Scholar Alerts
Many of you are probably aware of Google’s Alert service (google.com/alerts), which runs your web search continuously and automatically sends you results via e-mail. Although you can select “everything” from Google Alerts’ “result type” criteria, “everything” does not include anything from Google Scholar’s database. The only way to receive alerts about cases and articles is to click “create alert” at the bottom of the results page after you have run a Google Scholar search. Your alert could be used to track a party, judge, expert, or attorney (if you use the person’s name as a keyword or phrase), or you can track a specific topic using keywords to describe the topic. If your original search was limited to a specific court, your alert will also be limited to that court. Run a new search that includes all courts (or all federal courts, etc.) if you want to broaden the jurisdiction.
The website of the U.S. Securities and Exchange Commission (SEC; sec.gov) allows you to access free real-time SEC public company filings using the EDGAR database, a helpful tool for fact finding, due diligence, and background research of people and companies (and more). You can use EDGAR the traditional way, which is to search by company name for background information about a company and its executives. Or you can expand your fact-finding search by using EDGAR’s full-text search feature (linkon.in/edgarpubco), available since 2006, to search all filings as well as attachments to the filing. For background research, full-text searching means that you can search by a person’s name to learn about his or her involvement (if any) with public companies without having to know the name of the company. Unfortunately, you can only search the most recent four years of filings full-text. Be sure to select the “Advanced Search Page” to fashion a more targeted search (e.g., limit by date, by form type).
A full-text EDGAR search can also be used to locate samples for documents you need to draft. For example, when I needed to draft a tribal casino management contract for a client, I searched full-text through EDGAR and located several to use as samples. In another matter, I was tasked with finding executive compensation plans in a particular industry and found several to serve as samples before drafting our client’s plan.
Federal Digital System
You can use the Federal Digital System (FDsys) for fact finding, locating potential experts, and learning about a non-legal topic for a particular case. If you graduated from law school before March 16, 2012, you most likely used GPO Access if you needed to research online information about all three branches of the federal government and you probably used THOMAS.gov to research congressional information. After 16 years, GPO Access has now shut down, and FDsys (gpo.gov/fdsys) has become the U.S. Government Printing Office’s official online system for free access to government information. And after 20 years, THOMAS.gov is in the process of being shut down (by the end of 2014). It has already been replaced by Congress.gov (congress.gov).
Depending on your practice area, you may find yourself using FDsys or Congress.gov to obtain government information (such as proposed bills, congressional hearings and reports, and administrative and executive documents) for background and factual research. For example, if you are involved in a wrongful death lawsuit, representing a veteran’s family who claims he committed suicide because he didn’t receive adequate mental health care after returning from Iraq, you might find VA Mental Health Care: Ensuring Timely Access to High-Quality Care Hearing before the Committee on Veterans’ Affairs from March 20, 2013, to be solid background reading to get up to speed on the topic. And, as you read through statements in the hearing, you might even find potential expert witnesses. We found this congressional hearing at FDsys (Congress.gov doesn’t contain congressional hearings but does contain congressional reports and legislation).
The FDsys website arranges its database into 50 collections, such as the Budget of the U.S. Government, Code of Federal Regulations, Congressional Bills, Congressional Hearings, Federal Register, Statutes at Large, U.S. Code, and U.S. Court Opinions. You can conduct a keyword and/or phrase search through all of FDsys’s collections simultaneously by using the search box on FDsys’s home page. To focus your search on only one collection (or multiple collections, but less than all) and to create a more sophisticated search, the Advanced Search (linkon.in/y2uMZC) is your best option. You can also browse through collections or retrieve a specific document by citation using links on the home page. FDsys is not the easiest system to use. Although there are free tutorials online (tinyurl.com/po9levm), I found them to be somewhat lacking.
More detailed discussions on how to use the various resources discussed in this article (and hundreds of other resources) can be found in my recent ABA Law Practice Division book, Internet Legal Research on a Budget, co-authored with Judy K. Davis (ABA, 2014), and two earlier books about investigative research that I co-authored with Mark Rosch: Find Info Like a Pro, Volume 1: Mining the Internet’s Publicly Available Resources for Investigative Research (ABA, 2010) and Find Info Like a Pro, Volume 2: Mining the Internet’s Public Records for Investigative Research (ABA, 2012). My website (netforlawyers.com) also lists information on upcoming seminars I regularly present with Mark Rosch on how (and when) to use these fact-finding websites.
Don’t Ignore the Background
Although overlooked in law school, conducting background and fact-finding research are integral facets of legal research. As discussed in this article, some of the legal research resources that you already learned about in law school, such as case law databases, can also serve as background and fact-finding research tools by simply creating a different type of search—searching by a person’s name instead of searching for legal issues and keywords. You should also investigate other resources discussed in this article that are of a more recent vintage, such as Casemaker, Fastcase, Congress.gov, and FDsys. With all the free and low-cost resources now available, you can no longer overlook background and fact-finding research.