Wednesday, March 11, 2009
Law students love to research. No, it's true! They love to research because it's fun to find authority that is relevant to the issues AND because as long as they're researching, they can postpone the more painful task of writing. All that research, however, produces a stack of materials which the writer must eventually assess and determine how--if at all--to use. Here's a simple, but effective, way to do that.
In a recent blog post at The Complete Lawyer, Mercer Professor David Hricik describes his "two piles" approach to assessing the products of legal research. The first cut focuses solely on results (what was the outcome? which position won? which lost?). The second cut examines the cases in each pile for factual analogies and distinctions. In the second sorting, writers pay attention to the facts, separating those with very different or distinguishable facts from those that have similarities.
As Hricik explains, the similar but "bad" cases deserve attention because they represent the "most powerful weapons for my opponent." From the "good case" pile, by selecting and using those "with the most similar or analogous facts and the right result, the more difficult it would be for the other side to distinguish . . . and argue that a different result should be reached."