Is Your Open Memo Research Finished?

You’ve been researching your open memo, experiencing frustration, relief, and maybe even exhilaration along the way. But now you’re feeling fatigue and an unsettling sense that you’re not sure whether you’re done. What to do?

Don’t ask your professor, “How many cases do I need?”  There is no magic number of cases, but there is a core group of essential cases and a larger universe of potentially useful cases. Your professor expects you to find the essential cases and a smattering of other stuff. It’s likely that you’ve found too much. So first, you need to decide when to stop. Second, you need to analyze what you’ve found.

You’re done researching if . . . 

You’ve found mandatory authority on your issue. The best mandatory authority is not only from an appellate court in the relevant jurisdiction – it’s also recent and involves facts similar to those of your assignment. It is a rare legal writing assignment that does not involve cases meeting these criteria. You’ll know them when you see them.

You’ve found relevant cases with favorable and unfavorable outcomes. The purpose of a memo is to provide objective, balanced analysis of a legal issue or claim, giving you the opportunity to view a problem from all sides and to present both analysis and counter-analysis. To facilitate this goal, many memo assignments are based on essential cases that have varied outcomes; these outcomes are driven by the facts, which may be more or less analogous to yours. If all the cases you’ve found are favorable to your client’s position, you may have missed something along the way.

You’ve found the same cases over and over again. There are many paths through the research jungle; if you’re doing things right, they all lead to the same place. Using multiple research techniques provides a check on the process and increases the chances that you’ve found what you need. For example, you might find the same case(s) in secondary sources, by digesting, in annotations to a statute (if you have a statutory issue), by online key number searches, etc. If you’ve tried several techniques and gotten the same results, your research is likely complete.

Your cases are still “good law.” This means the cases you’re relying on have not been reversed or overturned. (What’s the difference? A case that is appealed will be reversed or affirmed.  An unrelated case may overturn the holding of an older case on the same issue.)  It’s crucial to check the subsequent history of every case you’re relying on in your memo. Citing an overturned opinion will hurt your grade; in the Real World, the consequences will be greater: malpractice and possible loss of your job. Trial court opinions, such as those of the Federal District Courts, require particular scrutiny, as they are the most likely to be appealed.

You’ve found the most recent cases that cite your key cases. In addition to making sure your cases haven’t been reversed or overturned, you need to follow the trail of cases that cite your cases. Theoretically, this could lead to a never-ending daisy chain of citations. Realistically, the cases that matter are those that cite your case for the relevant issue and that are (a) mandatory, (b) recent, and/or (c) provide detailed or different analysis on similar facts.

Next, carefully consider the following:

 Strong persuasive authority. Persuasive authority refers to cases from jurisdictions other than your own, or decisions of a trial court in your jurisdiction. The best persuasive authority is recent and involves facts similar to yours.  Persuasive authority is crucial if there is no mandatory authority on your issue.

Weak persuasive authority. That 1974 Iowa Court of Appeals opinion interpreting a statute that’s phrased similarly to the New York law you’re working with? Let it go. Remember it fondly for the headnote you discovered and then searched in New York, which led you to that 2013 New York Appellate Court opinion.

Origin stories. The very first case that articulates a rule can deepen your understanding of the law and its development. Finding a case like this demonstrates the thoroughness of your research, and is especially valuable if it’s from the highest court in your state – or SCOTUS.

Older cases that say the same things as newer cases. Let’s say you have two cases from your jurisdiction that apply the same rule to similar facts and reach the same outcome. One case is from 1989, the other from 2010. Keep the 21^st century opinion.

Reversed/Overturned Cases. Put aside anything that’s been reversed or overturned. Label it clearly so you don’t use it by mistake.

Secondary sources. Hold on to these for reference, but do not cite them in your memo. They helped you find and understand the law, but they really are secondary now.

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Other helpful law school tips:

• Researching Your Open Memo: Finding One Good Case
• Want to Get Good Law School Grades – Become a Self-Starter
• Have You Visited the Academic Support Office Yet? 
• How to Think Like a Successful Law Student

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