Everyone has learned to think outside the box, but you need to learn to search outside the lines. Ordinary legal research works when you need all the standard stuff, but doesn’t work when you are looking for something unusual or something you just can’t find in all those nice cases and statutes. Until the Internet, you did not have too many choices. Now, with a little help from search engines and a lot of creative thought, you can go where no one has gone before.
For example, a client had an exclusive right to serve breakfast until 11:00AM in a small local mall. A competing restaurant decided to serve coffee and pastries before 11:00AM and claimed it wasn’t breakfast. Standard legal research dredged up what could be enforced, but did not come up with the basic issue: what is breakfast?
The landlord was no help. They wanted to agree that coffee and pastries did not count as breakfast. We had to fight the landlord, competitor, and the slew of attorneys they hired and fired. We won and the landlord traded other benefits for giving up the breakfast exclusive.
What did I do to get to this result? Every time I saw the word “breakfast” in a book, I looked to see what it said. “I had breakfast on the bus, same thing every day: a hot, sugary, glazed cruller from our little … French Bakery,” or, “Met for an early breakfast at a pastry shop and ordered sweet rolls.” I also looked at time situations—e.g., McDonald’s only served Egg McMuffins until a certain time and then breakfast was over. Carrow’s Golden Club had Breakfast Specials available until 11:00AM.
I searched for medical studies (University of Ulster—girls fed breakfast of toast), hotel and bakery menus (Palo Alto—breakfast consists of flaky croissant and gourmet coffee served downstairs in Palo Alto Bakery), dictionary and religious interpretations (“Break Fast” is held on Yom Kippur—occurs at night but is still first meal of day, which is also the dictionary definition). Found on CuisineNet and Diners Digest: “breakfast” in France, Italy, Belgium, and Luxembourg—coffee and bread. International recipes online—similar breadstuff and beverages.
I looked for state legislation on breakfast and found an offer to have a sign on the freeway if they were open for three meals a day. Those who usually started at lunch began a program to serve coffee and pastry or toast to get the freeway sign. McDonald’s objected and the state legislature offered a bill to cover this issue. By checking with the sponsoring lawmakers, I was able to find out the bill never got passed. Thus, in that state, coffee and bread or pastries was breakfast.
Finding and communicating all of this information enabled us to win without ever seeing the inside of a courtroom.
7 Ways to Search Outside the Lines
The next time you’re doing research, or searching online for information, here are a few key things to keep in mind:
- Move your search terms around. E.g., “state legislation breakfast;” “hotel breakfasts;” “definition of breakfast;” breakfast definition;” “bad breakfasts.” The order of the words will often result in stunningly different results.
- Use different search engines. Google, Yahoo, and any of the standard ones are fine, but may pull up varying results even among themselves. Duckduckgo (a favorite of mine) seems to get a different grouping but I find it is often not sufficient alone.
- Use negative questions. If, for example, you want to find out if a product, hotel, restaurant,etc., is good or safe, doing a general search using the name may not yield all the reliable results. Doing the same search with a negative phrase may be more fruitful. For example: “Complaints about XYZ.”
- Use synonyms for the words you are searching. Back in the old days, if you wanted to find out about employment law you would have searched “Master and Servant.” Today you would be better off with “employer,” “employee,” “work/employment rights,” and so on.
- Add more words to the search.
- Use fewer words in the search.
- Search tweets. There is now an app (Tweet Engine) which searches all Tweets by subject or words used in the Tweet.
Tips 5 and 6 may seem contradictory, but they are not. If you are not finding what you need, try both of these tactics. Some informational websites such as the California State Bar’s either yields or does not yield information based on how a name is searched. This is also true if you are looking up names on the Secretary of State site to find a corporation or an LLC, or on the County Recorder’s site for a business name. You may find that leaving out, or putting in, an address or location will yield more information. Nicknames, middle initials or names, known interests and hobbies will also yield more results, especially with places like Facebook or LinkedIn.
With UCC-1’s, too much information may result in a name not showing up, so do the search both ways. My recollection is that there was a case in which an A.K.A. (also known as) was used in the search together with the actual name, but yielded no result, although there was a lien filed under the actual name. The court said the search was done incorrectly.
Who should do the search?
You may have someone authorized to do all your LexisNexis searches, or maybe a paralegal or office assistant. All of those may be good, but you need someone with a creative mind who can recognize what may be an unusual connection that can then be used to resolve the issue. This may be you or some other individual in your office whom you know to be a creative type. If you are a sole practitioner, I strongly recommend that you do the search. You will then be putting all the information that you come across into your brain. It may not be useful for the case you are working on, but it is amazing how often the information you did not think useful in the original case will come in handy in a different situation.
Expand your own legal knowledge.
For instance, if an unfamiliar term is used, before going to the your standard sources, conduct your own search. This will yield more information which will help ensure that you go to the right sources for “real” legal research.
What about billing the client?
That is a tough one and you have to be careful not to overcharge the client. You may decide to offer a different pricing structure for this kind of search or plan to absorb some, or all, of the time.