While NLRG is easy to use, it is not always easy to use effectively. In fact, we have noted over
the years that some of clients make much better use of our services than others. Here are a few
suggestions for making effective use of outside researchers.
Call Early. There is nothing so frustrating for the professional research attorney as finding a
good case or promising legal theory and then being locked into a losing approach because it is
too late to take more discovery or raise a new issue. Attorneys who call NLRG on the eve of
trial, when the issues and facts are fixed, do not use our services to best advantage. An even
worse situation occurs when we are called for the first time when a case is on appeal. We often
find in these cases that good arguments have been lost for failure to raise them in the trial court.
We do not mean to say that we cannot offer assistance in these situations; we have drafted many
successful briefs when called for the first time after a case was appealed. But when we are called
late, we are bound by the actions of those who took action early.
Our wiser clients call us early in the case, before discovery is complete, and before the legal
issues have been fixed. When we are called early, we have maximum freedom to uncover not
only new authority, but also new theories. We can also ask important factual questions at a time
when they can still be answered through discovery. Even when we find that the existing legal
theory is the best one, discovery is still more effective when it is undertaken with an eye toward
developing facts which maximize the factual similarities with favorable case law. Remember
also that most state rules of civil procedure impose upon counsel a duty to conduct legal research
before filing a claim which may be weak or questionable. In those cases, the cost of delaying
legal research could be sanctions.
Does calling NLRG early increase the overall cost of our assistance? Not necessarily. The cost
of researching a given legal theory is normally the same, regardless of when the research is done.
If we find a promising new theory early in the case, there may be an additional charge to research
it, but we may spend proportionally less time researching the original theory. If the cost of
researching the law is the same, it makes sense to conduct research early in the case, when the
benefit of the research will be greatest.
Applying the law to the facts early in the case is sometimes inefficient, as must make
assumptions about the facts, assumptions which may prove to be wrong when discovery is
conducted. The same research would then need to be repeated, under a correct set of factual
assumptions. But we can manage this risk by minimizing the number of factual assumptions.
Work products done early in the case are normally shorter and more objective; they focus upon
describing the available legal theories, evaluating the clearly known facts, and identifying key
areas for further discovery. We do not normally argue the facts in traditional brief format until
discovery is complete, and the facts of the case are more certain.
The cost of using NLRG early is therefore not too different from the cost of using NLRG late.
Of course, if you use NLRG both early and late for example, an initial evaluation followed by a
trial memorandum after discovery is complete then there obviously is an additional expense, as
we are preparing two products rather than one. But the additional expense is often justified by
the advantage of taking discovery with full knowledge of your best theory. Also, where the case
can afford only one product, the better product is often the earlier one, as it gives you the
opportunity to better tailor your theories and discovery to the favorable case law.
Be Flexible. Experts in all areas are most effective when they are given maximum freedom to
use their expertise to benefit the client. If you require an expert to adopt a certain theory of the
case, or a certain reading of the case law, you may not be using that expert to best advantage.
This general rule is particular applicable to legal research. The first task of the successful
advocate is not to find the right cases, but to define the right issue. A case which appears to offer
limited chances for success can sometimes become materially strong if the issue is defined
differently.
For example, under the joint title gift presumption, a transfer of separate property into joint title
is presumed to be a gift. In many states, the presumption is difficult to rebut, especially where
the marriage is long. If you represent the transferor spouse, your chances to rebut the
presumption may well be limited. But there is a good body of case law holding that even where
the presumption applies, the marital asset created by the transfer need not be divided equally. In
fact, there are many cases approving an unequal division. If the issue is defined to include not
only the classification of the asset, but also the ultimate division, the transferor's position
becomes much stronger. This is a classic example of how the definition of the issue can
sometimes determine who wins and loses.
When using NLRG, try not to limit us to any particular method for accomplishing your client's
goals. You may well find that we will find a new theory, or a new approach to an existing
theory, which will improve the strength of your position.
Flexibility is also important in determining the scope of the research. The fundamental decision
whether to look at out-of-state case law is always left to you. When we do look out of state,
however, we are sometimes asked to limit ourselves to states in the immediate area. This is often
unwise. The best analogy is a state with similar law. Obviously, states which are physically
close are sometimes legally very distant. Authority from a distant state can be very persuasive if
that state has the exact same statutory language. Also, a factually identical case from a distant
state may carry more weight than a distinguishable case from a nearby state. Finally, in the
course of researching the underlying issues, we may well get a sense of which other states are
most likely to be persuasive. For example, if your state's appellate courts have relied upon
authority from another state in addressing a specific issue, that state's authority will always be
more persuasive than geography alone would suggest. Searches in non-adjacent states are not
necessarily more expensive, as the first resource for any nationwide search is a good treatise, and
a treatise will cite cases from all states. If you want us to look at out-of-state law, give us the
flexibility to find the best law available.
Accept Reality. It would be wonderful if we could all be like Perry Mason, and win every case.
But in the real world, every lawyer loses sometimes. Also, you are probably not going to seek
research assistance unless there is some degree of doubt that your client will prevail. Research
attorneys, like specialists of all types, deal primarily with cases in which there is no easy answer.
In the great majority of the cases submitted to us, our client's position has both strengths and
weaknesses. We can avoid find theories or cases which maximize the strengths, and minimize
the weaknesses. But it is unrealistic to ignore the weaknesses entirely. It is essential to face
weak point openly, and establish reasonable goals for the project as a whole.
Again, the joint title gift presumption provides an illustration. In any case in which separate
property was conveyed into joint title, it is possible that the property became marital. In many
states, this result is substantially likely. But as noted above, even in states where the presumption
is strong, there is a much better argument for an unequal division. Such a division will not give
the transferor the entire asset, but it will give him a disproportionate share of the asset's value. If
the transferor's attorney focuses too much on the weaker argument that the asset remained
separate, he or she may lose sight of the much stronger argument for an unequal division.
It should also go without saying that there is nothing to be gained by failing to tell us about
unfavorable facts. With legal research, like computers, quality output depends upon quality
input.
In most cases, you will obtain better results by accepting the weak points of your case, and
making the best possible arguments for minimizing them. NLRG's Senior Attorneys are
experienced enough to recognize potential weak points when you submit your case, and to try to
focus the project on ways to minimize those weak points realistically. Listen to us on the weak
points of your case as well as the strong ones, and you will do better in cases where the law and
the facts are not entirely favorable.
Tell Us Your Cost Limitations. It is an unavoidable fact of life that cases sometimes cannot
afford all of the research is objectively necessary. NLRG's Senior Attorneys are not pie-in-the-
sky academics; they work every day with real attorneys, who have real limitations on the funds
available for research. In fact, in most of our cases, the research budget is limited. We have
substantial experience not only in finding new theories and new cases, but in finding new
theories and cases efficiently within a limited budget.
But we cannot use our ability to work efficiency without help from you. If you tell us your facts
and request an estimate, we will base the estimate upon how much research is objectively
necessary to find the best theories and cases. We are willing and able to discuss how to utilize
limited funds most efficiently, but we cannot begin that discussion until we know that your funds
are limited.
If our initial budget estimate exceeds the funds available for research, please do not jump to the
conclusion that our assistance will be too expensive. Tell us about your cost limitation, and ask
us to tell you what we can accomplish with the funds available. You may be surprised how much
assistance we can provide within a limited budget.
Communicate Clearly. The above suggestions are based upon a review of our most successful
projects. Those projects tend to involve situations in which we were called early, and given
maximum flexibility to develop a realistic and cost-effective plan for maximizing strong points
and minimizing weak ones.
But we can also learn from examining our less successful projects. These projects show above
all the importance of clear communication. If we do not understand your facts, our research will
be of limited usefulness. If we do not understand the issue you want researched or the scope of
the intended search, we will not do the work you desire. And of course, any misunderstanding as
the budget estimate or authorization to proceed is a receipe for disaster. If flexibility and realism
are the keys to a successful project, unclear communication is the single problem most likely to
prevent any project from achieving its goals.
NLRG's Senior Attorneys know the importance of clear communication. With your consent, we
will record any conversation in which a new case is submitted. This minimizes the likelihood of
misunderstandings, particularly when the case is assigned to a research attorney who did not
initially set the case up. Whenever you submit a project, our billing computer sends you a letter
restating the fact that we have been retained, and confirming the budget estimate. We will ask to
receive a copy of any document which is relevant to the issues presented for research. Finally,
we will not hesitate to call you if any uncertainty develops regarding the facts or the issues to be
researched.
What can you do as client to minimize the likelihood of unclear communication? To begin with,
send us primary source documents: pleadings, discovery responses, and transcripts. If you
merely summarize these documents to us, we are bound by the accuracy of the summary. This is
problematic not only because of potential error in the summary, but also because you may not tell
us about portions of the documents which seem irrelevant. If we find new theories or new cases,
the result might be to change the definition of relevance. If that happens, and we do not have the
primary documents, we may miss newly-relevant facts.
If our research attorney calls you during the course of project, please, take the call or return it
promptly. We try to obtain all relevant facts initially, but the law has a habit of developing in a
way different from even experts expect. As a result, we may need additional facts, facts which
may well make your case stronger. In addition, you remain responsible for overall strategic
decisions, such as whether to emphsize a weaker theory with a higher reward, or a stronger
theory with a lower reward. When preparing a product for the court, we may need to consult you
on this sort of question.
When you have written material setting forth opposing counsel's position either documents
filed with the court or informal negotiating letters that material helps us focus better on the
arguments which the other side is actually making. Sometimes, opposing counsel's arguments
will not be the most effective ones. Rebutting an effective argument which opposing counsel has
not made will not aid your position, and may suggest that argument to the other side.
If you have formal or informal documents which set forth authority in support of your position,
send us those as well. Otherwise, we may spend your client's money discovering authority of
which you are already aware. If you have asked us to write a brief for the court, please
understand that the material you sent may be part of what we prepare. We will probably add new
cases or arguments, and may rework some of your material. But again, it makes little sense to
spend time rewriting existing language. We will instead focus our efforts on determining what
we can add, over and above the work that has already been done.
Conclusion. NLRG works most effectively for your benefit when we are given clear instructions
on the parameters of the project. But the best results are obtained when those parameters are set
early in the case, with as much flexibility as possible, with open discussion of cost limitations,
and with a clear eye on the weaknesses as well as the strengths of the case. When our services
are used in this manner, we have achieved some remarkable results for our clients.
