Wednesday, November 28, 2012

When to Stop Researching: when you are not finding results

The question of when to stop researching is a difficult one to answer. This is an issue that arises in two different contexts. The first is when to stop researching when you do not locate any results. The second, and more common context, is when to stop researching after locating a variety of legal resources addressing your topic; specifically, when is your research complete? do you know when you are done?

This week's post is focused on the first issue -- when you should stop researching if you are unsuccessful in finding relevant results. (Keep an eye out for next week's blog posting, which will discuss the second issue.)

If your research has not yielded any results after about 45 minutes, consider reevaluating your research plan.

Verify that you are:
  • using a number of different research techniques (i.e., topic/key number, index keyword, full-text searching)
  • examining secondary resources. A secondary resource can provide background information to help you understand the context of your legal issue. It can give you the lay of the land, so you know, for instance, that your research is governed by state or federal law, or it can provide you with key search terms.
  • examining a variety of primary resources. Your issue may not be addressed by statutory law. If you have conducted statutory research using all possible terms, move to another source such as case law.  It is also possible that your topic is covered by federal versus state law.
  • consulting both print and online sources
  • looking at resources from different publishers. While you will find most of the same primary resources (cases, statutes, regulations) from i.e., LexisNexis and Westlaw, secondary sources, such as treatises and practice guides, are more unique to each publisher.
Reconsider the issue and search terms. You may be conceptualizing and examining the issue too broadly or narrowly; your search terms may be articulated too broadly or narrowly. Take a second look at secondary sources, which can be helpful in reframing the issue or determing pertinent search terms.

Reconsider the legal theory.  You may have inacurrately formulated your issue and are researching in an incorrect area of the law. Again, a second look at secondary sources can provide an overview of the law that consolidates the various ways a topic may be analyzed.

Do you have a matter of first impression? It is possible that you are researching an issue that has not yet been addressed in your jurisdiction; you will therefore be unable to locate law on your topic. If this is the situation, look at how other jurisdictions have treated the issue by using a secondary source such as a legal encyclopedia, treatise, or ALR annotation. You should advise your supervising attorney not only that your jurisdiction has not addressed this issue, but detail the distinct ways other jurisdictions have decided the matter.

Confer with a reference librarian. Chatting with a professional about your research methodology may turn up a step/issue you have yet to consider. "Principals are your pals," but librarians are your friends!

As always, it is best to keep a research log that lists the steps you have taken, including the resource checked and the search used. The purpose of the log is to help you review your process to be sure you have exhausted possible research paths.

Keep an eye out for next week's posting on when to stop researching after locating a variety of legal resources addressing your topic; specifically, when is your research complete? do you know when you are done?

Happy research trails to you!

Wednesday, November 7, 2012

Natural Disasters

Recent media coverage of the destruction caused by super storm Sandy and the threat of a nor'easter hitting the same area has me pondering the legal issues surrounding natural disasters and emergency preparedness.

As we saw with previous hurricanes, such as Katrina, much litigation arises from the government's response and clean up efforts. Insurance and labor are just two of the areas of law affected by natural disasters. Too often, survivors are left to navigate through the muddy legal waters themselves because they do not know where to find needed information.

A good place to start researching is the Federal Emergency Management Agency's (FEMA) website. One of the many helpful links is the Declaration Process Fact Sheet, which walks you through the steps required for states to receive federal assistance under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. §§ 5121-5206 (Stafford Act). The Governor must certify, among other things, that:
  • the severity and magnitude of the disaster exceed state and local capabilities
  • federal assistance is necessary to supplement the efforts and available resources of the state and local governments, disaster relief organizations, and compensation by insurance for disaster related losses
Which brings me to insurance related issues. For the most part, damage caused by natural disasters is covered by traditional homeowner policies, excluding flood damage. FEMA provides the National Flood Insurance Program (NFIP) Summary of Coverage on its site. According to the National Association of Insurance Commissioners' (NAIC) October 2012 CIPR Newsletter, the recently enacted Biggert-Waters Flood Insurance Reform Act of 2012 extends the NFIP for five more years and moves it toward risk-based pricing by phasing out subsidies for vacation and second homes, businesses, severe repetitive loss properties or substantially improved/damaged properties. As The Natural Disaster Law Lawyer Mops Up for Victims points out, having coverage does not guarantee a stress-free experience.  

Let's not forget about all the labor issues that can float to the surface after a disaster. Employers still must comply with the Fair Labor Standards Act (FLSA). Check out Extreme Weather, Natural Disasters and Personnel Issues for a few general pointers for businesses closed due to a natural disaster. If your business is lucky enough to remain open during clean up efforts, ensure you are following Occupational Safety and Health Administration (OSHA) guidelines.

Both employers and employees should be aware of guidelines for:
  • Federal and Medical Leave Act
  • The Uniformed Services Employment and Reemployment Rights Act 
  • The Worker Adjustment and Retraining Notification Act
 We all know that the best time to plan for a disaster is before it happens. Likewise, the time to look at these resources is before we are faced with another disaster. So, when you rush out to stock up on bread, water, and gas, remember to check out these resources too!