Chapter 4 – Introduction To Legal Research

1. Chapter 4 – Introduction To Legal Research

2. Chapter Objectives • Identify primary and secondary research sources and their use. • Discuss the function of primary and secondary research sources. • Explain the research process. • Conduct a research project locating primary law sources. • Research case law opinions. • Identify components of a legal citation. • Demonstrate an understanding of the ethical issues related to legal research.

3. Fundamentals of Legal Research • Research is the process of locating law. • Analysis: • Applied after finding the law and interpreting the application to the facts to formulate a persuasive argument supporting your position. • A research memorandum: • Reviews case facts, presents the research question, summarizes the research findings, and answers the research question with a legal analysis of the applicable law.

4. Primary Sources of Law • The most persuasive legal support for any argument always comes from primary sources. • These sources are considered legal or binding. • Federal primary sources include the C.F.R., Supreme Court opinions, the U.S.C., regulations, and administrative rules. continued

5. Primary Sources of Law • The annotated version: • Presents the law as enacted or case opinion as stated along with discussion and commentary. • A loose-leaf, binder, or pamphlet service: • A service that publishes recently decided court decisions in loose-leaf binders, such as U.S. Law Week. • The Federal Register: • Pamphlet service that records the daily activity of the Congress.

6. Administrative Agencies • Include the EPA, NRA, FCC, and others. • Agency regulations and rules have the full authority of law in matters related to the respective agency.

7. Case Reporters • Use case reporters to find the case law in the jurisdiction. • Case reporters publish opinions of the appellate courts that serve to interpret the law: • They contain opinions from every case heard and published within the relevant jurisdiction. • Reporters are organized by states and reasons.

8. Secondary Sources • Legal encyclopedias • Textbooks • Restatements of law • Publications from professional legal organizations

9. Sources of Law & Legal Research

10. Legal Encyclopedias • Am. Jur. and Am. Jur. 2d: • Legal encyclopedia organized by topics and subheadings presenting law and scholarly discussion from multiple jurisdictions. • Cor. Jur. 2d: • Legal encyclopedia organized by topics and subheadings presenting law and scholarly discussion from multiple jurisdictions.

11. Legal Digests • A digest: • A collection of all the headnotes from an associated series of volumes, arranged alphabetically by topic and by key number or summary of testimony with indexed references of a deposition. • A digest presents definitions form various encyclopedias, legal dictionaries, state statutes, and constitutional sources as well as common or case law. • The materials come from federal and state sources.

12. Fundamental Tools of Legal Research • Stare decisis: • Decisions from a court with substantially the same set of facts should be followed by that court and all lower courts under it; the judicial process of adhering to prior case decisions; the doctrine of precedent whereby once a court has decided a specific issue one way in the past, it and other courts in the same jurisdiction are obligated to follow that earlier decision in deciding cases with similar issues in the future.

13. Fundamental Tools of Legal Research • Precedent is the holding of past court decisions that are followed in future judicial cases where similar facts and legal issues are present. • A landmark case is a decision of the Supreme Court that significantly changes existing law: • Brown v. Bd. of Education is an example of a landmark case.

14. Legal Research Process • Case management and organization prepare you better than anything else. • Remember that electronic resources contain more comprehensive materials from the federal than the state system. • The individual paralegal develops a personal research style. • Regardless of style, the basic steps need to be followed.

15. Steps of the Research Process • Gather all relevant information • Prepare for research • Identify the legal issue or question • Identify key words • Explore secondary sources • Locate the primary authority • Review and update source information • Draft your research memorandum

16. Key Words • People key words: • business, business owner, customer, business invitee. • Event key words: • slip and fall, customer injury, negligence. • Relief key words: • compensatory damages, business slip and fall, punitive damages, damages and negligence.

17. Damages • Compensatory damages: • A payment to make up for a wrong committed and return the nonbreaching party to a position where the effect or the breach has been neutralized. • Punitive damages: • An amount of money awarded to a nonbreaching party that is not based on the actual losses incurred by that party, but as a punishment to the breaching party for the commission of an intentional wrong.

18. Legal Citations • A citation is information about a legal source directing you to the volume and page in which the legal source appears. • Properly attributing the legal issue, opinion, or conclusion s mandatory in all legal research and writing. • Consistency is critical. • Accuracy is essential.

19. Everything You Need to Know • The Bluebook:A Uniform System of Citation, 18th ed. • Widely used legal citation resource, published by the Harvard Law Review Association, that is regularly revised and updated. • ALWD Citation Manual • A legal citation resource, published by the Association of Legal Writing Directors, that contains local and state sources that may not be found in The Bluebook.

20. Sample Case Citation,U.S. Supreme Court (Federal) Appellee Source Page Appellant Meritor Savings Bank v. Vinson, 477 U.S. 57, 60 (1986) versus Volume Case Year Exact reference

21. The Cited Case • The appellant: • The party filing the appeal; that is, bringing the case to the appeals court. • The appellee: • The prevailing party in the lower court, who will respond to the appellant’s argument. • The case holding: • The statement of law the case opinion supports. • An advisory opinion: • Statement of potential interpretation of law in a future opinion made without real case facts at issue.

22. Reading Case Opinions • A concurrence is another view or analysis written by a member of the same reviewing panel. • A concurring opinion is an opinion that agrees with the majority argument and support the majority for different legal reasons or analysis. • The holding is that aspect of a court opinion which directly affects the outcome of the case; it is composed of the reasoning necessary and sufficient to reach the disposition.

23. Reading Case Opinions • The majority opinion is an opinion where more than half of the justices agree with the decision: • This opinion is precedent. • Dissenting opinion is an opinion in which a judge disagrees with the result reached by the majority; an opinion outlining the reasons for the dissent, which often critiques the majority and any concurring opinions. • Dicta is discussion included in the opinion with no authoritative or persuasive value; they are without legal weight but, nonetheless, valuable. • Distinguishing means explaining why the factual differences call for a decision differing from established law.

24. Types of Law to Research and Cite • The primary sources are mandatory. • Mandatory authority is required and binding or guiding in the case to which applied. • Law not directly applicable is persuasive. • Persuasive authority is influential and important but not required as binding.

25. Shepard’s Citing • Shepard’s Citations is a reference system that reports the legal authority referring to the legal position of the case and making reference to the case opinion. • Shepardizing cases: • Using Shepard’s verification and updating system for cases, statutes, and other legal resources. • Shepard’s has citatory series for both state and federal law.

26. Computer-Assisted Legal Research • CALR used electronically reproduced materials. • It is a great tool once you understand its value and limitations. • Electronic sources are derived from but do not replace traditional research books or text materials. • Organized similarly to traditional sources, but with the addition of the URL.

27. The Big Two • Lexis/Nexis: • Commercial electronic law database service contains the full text of federal and state cases, statutes, and administrative regulations. • There also are extensive secondary law source materials such as law journals and specialty publications such as tax law or agency materials. • Westlaw: • Commercial electronic law database service contains similar data to Lexis as well as appellate decisions in full-text format. • Westlaw uses the key numbering system for both electronic and traditional consistency.

28. Drawbacks of Using CALR • If the electronic system is down, you may be unable to complete your task. • Courts will not accept late document filings based on an electronic system being down. • Every resource is not available electronically. • Fee-for-service arrangements present another drawback.

29. Paralegal Ethical Codes • Published by NALA, the ABA and other professional paralegal organizations. • Require the utmost professional care in every task.

30. Summary • This lesson began the process of building legal research and citation skills: • explored both primary and secondary sources used in the process; • learned how to prioritize various sources and the value, in terms of influence on legal reasoning, of the sources in your analysis and legal argument.

31. Summary • You should have an understanding of the steps and tools available in the research process to ensure complete and current research results. • You examined the ethical concerns with legal research and looked at some strategies for avoiding ethical compromise.