DeanWuBlog

Research

I would like to offer six thoughts about conducting research. Given the technology that has become available within our lifetimes, anybody can conduct research. Yet as with much else, that has only increased, not decreased, the difference between results that are common and those that are superlative. A strategy is still needed to achieve the best results, and patience is likely to enhance performance. The below tips apply to both scholarly work and traditional legal research.

First, memorialize everything, including especially failure. You write a memo not only for others with whom you are working; you write it for your own future self. Anything you have looked at during the course of your work should be noted in some manner. The dead ends that appear to lead nowhere useful are the most important to remember, both to avoid pursuing the same blind lead once again and because what appeared irrelevant may turn out to be worthwhile in a previously unknown manner.

Second, trust nothing, including primary authorities. The best source of information is also the most unreliable: the internet, including even apparently reputable sources, is a repository of the outdated, the speculative, the malicious, and the fictitious, and the false. It is invaluable, but it also is dangerous. Google, Yahoo, or whatever other search engine you prefer, is the beginning, not the end, of the process (remember that search engines can be manipulated and you typically do not know their algorithm even if nobody is attempting to game the system). Ensure that everything you assert is based on multiple independent sources, the provenance of which you personally would vouch for. Even case law, statutes, and regulations cannot be accepted at face value. Laypeople often make that mistake: they locate a single precedent that supports their claim, and they might not be in error that it indeed is favorable to their cause – but they do not realize it must be checked in a citation service such as Shephard’s for everything subsequent. The decision may have been reversed on appeal or overruled by a later opinion or superseded by further legislative actions. Negative treatment of the best legal authorities is as important, indeed more so, than positive treatment of the same.

Third, document how you found what you found – the methodology as well as the substance. You will want to be able to retrace your course of action, and others will follow. You are likely to need to cite the source of your information, so retain what is needed to do so. When you copy a page from a book, copy the title page and the copyright page.

Fourth, if you conclude there is nothing on point, be prepared, using the above suggestions, to prove that there is nothing on point. Whenever you come up empty-handed, there are two distinct possibilities: (a) that the universe is empty; and (b) that you have not yet looked with enough skill. Novice researchers, asked by those for whom they are performing the work, how they can be confident that they live in the former universe are often frustrated; they feel it is unfair to be questioned, or they would prefer to simply re-do the work anew. To the contrary, a researcher who has memorialized everything, trusted nothing, and documented the methodology is best prepared, and she will be able to report to others and they will be persuaded: if she says there is nothing, then there is nothing. There is no research that is more important than research into the unknown – the other research is merely the collecting of information already available, however difficult it may seem.

Fifth, understand why the research is being done. How does this particular assignment advance the larger effort? It is much easier to perform competently and to offer original insights, if the overall goals are apparent. You should ask yourself, or, if there is a supervisor, ask her. If there is any problem explaining the point of the exercise, it is much less likely to repay the effort it requires.

Sixth, at least in performing work for me, be circumspect about discussing matters with others. I was chagrined to find when I was reviewing a book and preparing to make a critical comment about the author’s claims, and I needed to determine whether the author was novel in his statement or if he was quoting another source, that my research assistant contacted the author on my behalf to pose the query directly to him. Despite her good intentions, she betrayed the very ignorance I was attempting to remedy. Nonetheless, the fault was mine, for I had failed to explain how much I valued discretion. The admonition about confidentiality is all the more urgent in the context of legal work. Most of us are aware that attorneys owe a duty to their clients to maintain the privacy of everything divulged to them. Fewer may recall that the same rule extends to the agents of every attorney.

Issue Spotting

From time to time, I work with lawyers. What I mean is that from time to time, I work with lawyers as a client. Whenever that occurs, I bear in mind I am the client – meaning both that I have decision-making authority and cannot delegate my responsibilities and that I have retained an expert because of her expertise.

In working with some lawyers recently, I was reminded of the importance of issue-spotting as a skill. When I was a student, I wondered why, on final exams, professors didn’t do us the favor of identifying the issues they wished for us to analyze, rather than having us engage in the task of figuring out what was going on in a hypothetical fact pattern. It seemed perverse, unfair, perhaps silly.

Yet in working with counsel, I realized again how well they were trained to see the relevant controversies, indeed the outlines of risks that might never be realized, which were present in the situation we faced and of which I was quite unaware. We cannot very well rely on opposing counsel, or the court to help us out in this regard. If it is the former, we have ceded the crucial opportunity of framing – setting the agenda for discussion and the parameters within which it will proceed. If it is the latter, we have shown our weakness and our need for intervention, sympathetic or not.

Issue-spotting is the prerequisite to everything else. One must know there is potential issue, be able to assess the realistic likelihood it will materialize, exercise good judgment as to how much resources to devote to it, and so on – all as a preliminary analysis before turning to the merits of the matter.

Inference

I woke up this morning to see snow on the ground where there was none before. I slept soundly through the night, and I did not awaken at any point. I did not see snow falling during the night. Yet it is reasonably to infer that indeed it snowed during the night; it would be absurd to deny it.

This is a good demonstration of the power of inference. We infer all day, every day. We could not function if we required, in ordinary decision-making, direct evidence of each fact we considered.

There is nothing wrong with an inference per se. It may be less persuasive than direct evidence -- for example, awakening in the night, looking out the window, and seeing the snowflakes coming down -- but it can be only slightly less persuasive. The inference should be evaluated on its strength -- i.e., how many times has direct evidence proven the same proposition, reliably -- and not dismissed merely because it is an inference. The argument against an inference should be framed as "That inference is unwarranted, because . . ." and not as "That is an inference, and therefore unwarranted."

Peter Irons's Stork Theory of Supreme Court Cases

I was listening to a wonderful series of lectures by legal historian Peter Irons, and he mentioned the importance of disabusing people of the “stork theory” of Supreme Court cases. (This set of lectures, offered by The Teaching Company, is well worth the time.) According to Irons, many observers supposed – erroneously – that just as babies are supposedly delivered by storks, disputes simply show up on the Supreme Court docket. We overlook the tremendous effort, encompassing years in many instances, by lawyers, parties, experts, and others to develop the facts of the case. They are not ready-made, but are fashioned from the available materials.

Expertise

The greatest deception of experts is making it all look easy. This effect is not even deliberate. Oftentimes I have attended a performance, especially of an art form that is unfamiliar to me, and I leave the show with the delusion I too could do that too – dance, act, play the musical instrument, perform the athletic feat, and so on. It takes only a moment of reflection or simply a clumsy effort to imitate what I’ve just seen or heard, however, for me to understand that I have just witnessed a level of skill that, whatever the innate abilities involved, must have required incredible effort in training and practice. Indeed, I am so ignorant I am unable to discern the differences between what is basic and advanced, and who is merely good and who is extraordinary: I am told, for example, that there are many piano pieces that sound very difficult but in fact are simple, and vice versa.

I remember the first time I went to an appellate court. A group of us visited the Seventh Circuit, in the company of an experienced attorney. Afterward, I asked him how good the oral arguments were, in his view. None of us as neophytes had a good sense, one way or another. We needed his reassurance that the advocates had been effective, likely in part because our perceptions were distorted by media representations that bear little resemblance to reality.

Conversely, I have sometimes wondered why others cannot do what I do regularly. For example, I give speeches to audiences large and small, on subjects I know thoroughly as well as those I am only learning. I am not especially impressed by myself, but I recognize that true humility also means being aware that I have had more experience in these endeavors than most other people – not to mention formal education. I have been doing public speaking for well over half my life, not to mention the benefits of Socratic dialogue in law school, and I have had my share of humiliating moments that only I now remember.

So there is, as there should be, a difference between what teachers know and can do and what their students know and can do. The best teachers are those who are able to start their students toward becoming their equals.