Primary vs. Secondary Sources

Your goal as a legal researcher is to find primary sources of law that are relevant to your argument. The need to support your position with specific legal authority makes the legal research process different than other research endeavors. When writing research papers in the past, you might have included footnotes, endnotes, or a bibliography that listed a variety of sources which such as books, articles, studies, or virtually anything you may have found in a library or on the Internet. When writing a legal argument, you are required to provide authority and cite references to the actual law. Secondary sources or commentary are not sufficient to support your position.

Now that we have mastered this important point of legal authority, let's use an example to illustrate the second difference between legal research and other types of research.

Approaches to Research

Meandering Monica begins to work on her term paper on igneous rock formations. The due date is tomorrow and she is a bit late getting started. She wants to be as efficient as possible and locate the most useful resources. Therefore, she does a Google search, sifts through the results and finds a Wikipedia reference along with various articles, blogs, and other Internet resources which look promising. She also visits her college library where the reference librarian refers her to some books, articles and databases on geology.

The above may sound like a very familiar way that you have done research in the past. Basic research in most fields begins with a resource that discusses your topic. This could be a book, a report or article, an encyclopedia, a blog or other online resource.

If this is an approach you are familiar with, do not fear. There is nothing wrong with starting your legal research in a similar way. But legal research involves more than just finding some information that discusses the law. Your ultimate goal as a legal researcher is to determine what the law is. Sometimes, you will start with primary sources, and at other times you will begin with secondary sources. Work through the following problem to see an example.

In this approach, Monica begins with a primary source. But the experienced lawyer might very well have chosen to start with secondary sources. The best answer is "any of the above." The ideal way to start a research assignment depends upon several variables, not the least of which is the background knowledge the researcher has in that area of the law. Depending on the experience of the researcher and the topic in the assignment, any of the choices above may be starting methods.

As suggested by this example, there are many different ways Monica might approach the research for her assignment. If she already has some background knowledge of the subject matter, she might delve right in to find the law by looking for judicial opinions in similar cases. Alternatively, she might start with a secondary source such as a journal article or legal encyclopedia for a discussion of her topic that might also provide references to judicial opinions. Monica might anticipate that her state legislature has enacted a law relevant to her research which she must locate first. Deciding which legal tool to use first requires knowledge and experience just like knowing whether to complete the plumbing before or after the electrical work. You'll start to gain that valuable knowledge as you become more familiar with the tools of the legal research trade in this lesson.