The Process of Legal Research

West’s Instructional Aids Series The Process of Legal Research How to Use Print and Online Legal Resources To Your Best Advantage

Contents • Introduction • From Facts to Issue • Controlling Statute • Expanding Research • Identifying Cases to Cite • Ensuring Currency and Validity of Law • Conclusion

Introduction Contents

Introduction ( R)esearch requires the poetic quality of the imagination that sees significance and relation where others are indifferent or find unrelatedness; the synthetic quality of fusing items theretofore in isolation; above all the prophetic quality of piercing the future by knowing what questions to put and what direction to give inquiry. Frankfurter, “The Conditions for, and the Aims and Methods of, Legal Research,”: 15 Iowa L.Rev. 129, 134 (1930).

Introduction • Legal research is an art as well as a skill. It calls for judgment and creativity along with mastery of a set of tools and techniques. • Each research question will have a different starting point, process, and conclusion. • Every research project will include false starts, dead ends, and revisions. • There is never one “right” path. Researchers choosing different paths for the same research question may be equally successful. • Legal research is never “finished,” but the experienced researcher recognizes when to stop.

Introduction • The starting point of research depends on the nature of the issue, how it is presented to the researcher, and the researcher’s experience. • The starting point for research may be a fact pattern, a subject, an issue, a case, or a statute. • At the outset, determine if your research will be exclusively in case law or if there are statutes or regulations that should be explored. • Determine whether your research will be primarily in federal law or state law, or both.

Introduction • Research often begins with a fact pattern. You might be given an “on-point” case or statute, but seldom will the facts of your research question fit squarely with the facts of other cases or the language of the statute. • A client relates a narrative for which he feels “wronged” but has no legal theory to justify or deny compensation. • This is when your legal training will come into play. It is extremely difficult for someone untrained in the law to translate a fact pattern into a legal theory of recovery or defense.

Introduction State ISSUE Federal FACTS SECONDARY SOURCES Digests Key Numbers Annotations CONSTITUTIONS STATUTORY LAW CASE LAW REGULATIONS THEORY OF RECOVERY OR DEFENSE

From Facts to Issue Contents

Facts to Issue The Facts Ronnie, a salaried driver for the Acme Corporation, was unloading goods at a customer’s loading dock. Ronnie and the customer began to argue about whose duty it was to move the goods into the store. Ronnie shoved the customer. The customer fell and was injured. The customer is suing Acme for compensation for his injuries. Acme employs you to represent the corporation in the upcoming negotiations or litigation. The case is filed within the jurisdiction of the state courts of Louisiana.

Facts to Issue • These facts must be translated into a legal issue(s). • This is one of the hardest part of legal research for the beginning researcher. Legal resources are seldom organized by facts; they are organized by legal theory. • You will need to identify terms of art that might apply to this situation. • You will need to learn the “black letter” law – statements of principles that govern the particular area of the law. Black letter law will give shape and limits to your research.

Facts to Issue • The parameters of your research may later have to be broadened, tightened, or shifted, but it is reassuring to start out with a map of the area you will be exploring. • Your thinking about the legal issues presented by a particular set of facts is likely to change as you learn more about an area of the law. Remain flexible. • Once you are familiar with the relevant terms of art and black letter law, you should be able to articulate your issue more precisely.

Facts to Issue Research: In Print or Online? • There is no right or wrong way to begin your research. • In the past, researchers had no choice but to conduct legal research in print resources. The last few years have witnessed the introduction and tremendous growth of a powerful alternative, online legal research. • Neither is the “better” method. One might work better than the other in this situation. You won’t know until you get started. • In all likelihood, you will move back and forth between print and online resources during the research process.

Facts to Issue • When confronted with an unfamiliar area of the law, many researchers find it easier to use print resources (such as legal encyclopedias, restatements, and practice guides) to get an overview, set parameters, learn the terms of art and black-letter law. • Book materials have a satisfying way of organizing and limiting research. They naturally set boundaries within the law that the seemingly endless and seamless materials of online legal materials cannot provide. • Book materials can impart a sense of orientation, the feeling that you have found what you need to get started.

Facts to Issue One exception to the generalization that print resources are often the best place to start research is when the case is dependent on a particular detail. • If the case rests on the fact that the vehicle involved was a farm tractor, standard print indexes and table of contents will not be organized around farm tractor cases. A full text online search for farm tractors and injuries may retrieve cases that can be the starting point for research.

Facts to Issue Starting Research in Print Secondary Sources • You might start with a well respected secondary source, such as: • a treatise • West’s Nutshell Series • West’s Black Letter Series • American Law Reports (ALR) • a legal encyclopedia, such as American Jurisprudence (AMJUR) or Corpus Juris Secundum (CJS) • Law school casebooks, with their emphasis on related but seemingly contradictory cases are designed for instructional purposes. They are not efficient research tools. • Published study outlines often do not contain the clear analysis of contradictory outcomes needed for a full understanding of the issue.

Facts to Issue • All of the print products listed on the previous screen are secondary sources. • Secondary sources • are written by legal experts. • lay out general principles of law along with exceptions and variations to that law. • are a source of citations to primary law (cases, statutes, and regulations). • may be cited to support a legal theory, especially in an emerging or rapidly changing area of the law where there is no primary law available.

Facts to Issue • Once you have found a secondary source or two that you trust, check the index and table of contents. • Many indexes are designed with entry words that allow a researcher unfamiliar with an area of the law to find the appropriate sections. • The hierarchy of the materials listed in the table of contents will help you move from general to specific issues. • What you are looking for: • Terms of art that apply to the facts • A statement of the generally accepted principles of law, often called “black letter” law • Enough understanding of the broader aspects of the issue to set parameters for your research

Facts to Issue • The Table of Contents of Torts in the Nutshell Series has a section titled, Employers, Employees and Contractors. • This section introduces and defines the following terms: • Vicarious liability • Scope of employment or course of employment Employers, Employees and Contractors

Facts to Issue …(S)cope (or sometimes “course” or “scope and course”) of his employment … is a question of fact which considers the employee’s job description or assigned duties, the time, place, and purpose of employee’s act, the similarity of his conduct to the things he was hired or authorized to do or which are commonly done by such employees, and the foreseeability of his act. Vicarious liability is a form of strict liability by which A is held liable to another for the tort of B for no reason other than that there exists some relationship between A and B and B was acting within the scope of that relationship when he committed the tort. The overwhelming number of vicarious liability cases arise from the employer-employee relationship.

Facts to Issue • Torts in the Nutshell Series discusses the general black letter law that applies to the vicarious liability of employers for the acts of their employees. • Once it is determined that the tortfeasor was an employee at the time he committed the tort, his employer is vicariously liable if his conduct is within the scope of his employment. • Torts, in theBlack Letter Series, describes the liability of an employer for the intentional torts of employees: • An employer is vicariously liable for his employee’s intentional torts committed in the scope of his employment and in furtherance of his employer’s business, at least if the employee’s act was foreseeable.

Facts to Issue Black letter statements of the law from Torts in the Black Letter Series

Facts to Issue • You have found relevant terms of art and black letter statements of the issue which enables you to determine the focus of your research. • The fact that the assault was an intentional act and whether the act was in furtherance of Acme’s business and foreseeable will be important considerations. • You can now lay out the broad parameters of the issue and state the issue using appropriate legal terminology. • You must persuade the court that Ronnie’s intentional act was outside the scope of his employment. • You must also anticipate the arguments of your opponent.

Facts to Issue Issue When Ronnie assaulted the plaintiff, was he acting within the scope of his employment with Acme? Two Step Determination • Torts in a Nutshell lays out two questions that will help you determine if Acme is liable for Ronnie’s actions. • Was Ronnie an employee at the time of the accident? • Was Ronnie’s conduct within the scope of his employment? • The second step will be the focus of your research, as there is no issue as to Ronnie’s employee status.

Controlling Statute Contents

Controlling Statute Controlling Statute • Now you are ready to explore employer vicarious liability in more detail and retrieve relevant primary law. • The next step is often searching more detailed secondary sources or case law, but another option is to see if there is a controlling Louisiana statute. • Because you have learned the terms of art that are often used when referring to this issue, a Natural Language search in the Louisiana Statutes Annotated database (LA-ST-ANN) on Westlaw may be a good way to find relevant statutory law.

Controlling Statute • The Natural Language search method allows you to use “plain English” to retrieve relevant documents. Just enter a description of your issue and Westlaw will display the documents that best match the concepts in your description. • Natural Language searching is often an most effective way to search annotated statutory databases because: • The text of a statute is often obscurely worded by the legislature and the flexible nature of Natural Language can ignore search words that do not appear in the document and focus on the remaining words. • The annotations (Notes of Decisions) appended to the statute are summaries of case law that have interpreted or applied the statute and discuss the issue in the more foreseeable language of the courts.

Controlling Statute “Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.” § 2320 • Database: LA-ST-ANN • Search: employer “vicariously liable” for assault (“intentional act” “intentional tort”) of employee • The first statute displayed is Louisiana Civil Code § 2320. • This statute seems to be addressing employers’ vicarious liability and scope of employment, but it does not include the terms of art you encountered in the print resources.

Controlling Statute Click theBest arrow to display the portion of the document that most closely matches your description. In this document, the Best portion of the document is in the annotations where the more foreseeable language of case law is summarized. Best

Controlling Statute • The brief wording of the statute does not stand alone but has been interpreted and applied by many courts. • There are more than one thousand annotations, divided into almost two hundred subtopics appended to § 2320 and many of the subtopics seem relevant to your issue.

Controlling Statute • It there were fewer relevant annotations, it might be possible to confine your research to the full text of the cases summarized in the annotations. • The number of annotations makes it difficult to synthesize them into general principals law. You will more help. • In this case, it may be more efficient to search for relevant secondary sources that synthesize and analyze case law in detail.

Controlling Statute Responsibility for acts of employees • You would have had a more difficult time if you had attempted to find the controlling statute in the print statutory index. • Civil Code § 2320 is indexed under LABOR AND EMPLOYMENT, under the subtopic of Responsibility for acts of employees. • There is nothing listed under Vicarious liability or Scope of employment in the print Index.

Expanding Research Contents

Expanding Research Having found the controlling statute, but being unable to efficiently utilize the large number of annotations, you might turn to a secondary source that will analyze and synthesize your issue. At this point you have two choices: you could use the terms of art and language of the black letter law and : • go to a print secondary source and use the table of contents and index to focus your research. • go online and search for documents containing the terms of art. (Going on line prematurely can be an expensive choice, especially if you have easy access to the print resources.)

Expanding Research Print Resources • American Law Reports (ALR) articles offer detailed analysis of a narrow issue of law and provide many citations to relevant primary law. • In the print ALR Index (T-Z) ALR 2d, 3d, 4th, 5th, and Federal, under the listing for VICARIOUS LIABILITY • Assume you looked first for Employer, found Employment, and were referred to Labor and employment under this section • The Labor and Employment section has a promising entry: • Intentional wrong, employer’s liability for assault, theft, or similar intentional wrong committed by employee at home or business of customer (13 ALR5th 217)

Expanding Research VICARIOUS LIABILITY Relevant article Labor and employment Employment

Expanding Research SCOPE OF EMPLOYMENT AND AUTHORITY Assault • In the the print ALR Index (O-S) ALR 2d, 3d, 4th, 5th, Federal • Under SCOPE OF EMPLOYMENT AND AUTHORITY,you see • Assault • Employer’s liability for assault, theft, or similarintentional wrong committed by employee at home or business of customer (13 ALR 217) • You found the same article under both VICARIOUS LIABILITY and SCOPE OF EMPLOYMENT AND AUTHORITY in the ALR Index.

Expanding Research SCOPE OF EMPLOYMENT AND AUTHORITY • Be sure to check in the ALR Indexes’ pocket parts for recent ALR articles. • There are three recent articles listed in the pocket part of the O-S Index under SCOPE OF EMPLOYMENT AND AUTHORITY, but none deal with the specific issue of an intentional act of an employee within the scope of employment.

Expanding Research • This is the first page of the article found in the ALR Index that seems most relevant. • It is a summary of the issue, with reference to the lead case that initiated the article. • The full text of the lead case can be found at the end of the volume. • The cite for the article is 13 ALR 5th 217. The case is reported at 540 So. 2d 363. The full text of the case is also available in the ALR, at 13 ALR5th 962. Smith v. Orkin Exterminating Co., 540 So. 2d 363 (La Ct.App. 1989). Smith v. Orkin Exterminating Co. is fully reported at page 962, infra.

Expanding Research Table of Contents ALR article finding aids, such as the Table of Contents, Research References, and Index follow the summary of the article. Index § 13 Assaults 3-9, 12, 13 Research References

NONSEXUAL ASSAULTSunder BUSINESS OF CUSTOMER is the section of the article that seems most relevant to your issue. Notice that the article uses the phrase Respondeat superior, rather than vicarious liability. Expanding Research Article Outline • In the Article Outline, the phrase respondeat superior is used under the subtopic of NONSEXUAL ASSAULTS under BUSINESS OF CUSTOMER. You have not encountered this phrase before. • Check Black’s Law Dictionary for a definition of respondeat superior.

Expanding Research Blacks Law Dictionary Black’s Law Dictionary contains the follow definition of respondeat superior: “This maxim means that a master is liable in certain cases for the wrongful acts of his servant, and a principal for those of his agent…”

Expanding Research RESPONDEAT SUPERIOR Intentional wrong You should consider respondeat superior as an alternative to vicarious liability in your research. (If you had begun looking at RESPONDEAT SUPERIOR in the ALR Index, you would have found the same article under the subheading, Intentional wrong.)

Expanding Research Several of the ALR article’s finding aids have led to the most relevant section of the article: III. Business of Customer B. Nonsexual Assaults §13 Respondeat superior (a) Theory established or supportable (b) Theory not established

McDermott v. American Brewing Co (1901) 105 La 124, 29 So. 498 - § 13 [b] (reference to the section of the article where McDermott is discussed). Expanding Research Jurisdictional Table • The article includes a Jurisdictional Table of Cited Statutes and Cases. • McDermott v. American Brewing is the only Louisiana case in the table that deals with nonsexual assault of a customer at the place of the customer’s business. Louisiana cases § 13(b)

Expanding Research 13 ALR 5th 217 • Be sure to check the pocket part of the ALR volume for recent relevant case law. • Pocket parts inserted into the back cover periodically supplement the materials in the bound volume. There are no entries in the pocket part for § 13. There is a number to call for very recent case summaries.

Expanding Research Online Research • You could have searched first for the terms of art on Westlaw. In this session, you might want to supplement and confirm your print product research in the ALR database. • Whether you look for the relevant article(s) by using the print ALR index or by searching Westlaw is a matter of choice and economics. • Note: Many people find it difficult to read with total comprehension detailed online articles. If you prefer to look for documents online, you might want to print them and then read, highlight and make notes on the printed document(s).

Expanding Research • Database: ALR • Terms and Connectors search: ti(“vicarious liability” “respondeat superior” & employ!) • Result:seven documents. Two are in ALR INDEX TO ANNOTATIONS (articles). One is under VICARIOUS LIABILITY, the other under RESPONDEAT SUPERIOR. Both lead to the same article you found in the print ALR indexes. Link to article Intentional wrong, employer’s liability for assault, theft, or similar intentional wrong committed by employee at home or business of customer

Expanding Research • This is the same article you found using the ALR print index. • Note the link to Smith v. Orkin. The full text of the opinion is available in the Louisiana State Cases database (LA-CS). EMPLOYER’S LIABILITY FOR ASSAULT, THEFT, OR SIMILAR INTENTIONAL WRONG COMMITTED BY EMPLOYEE AT HOME OR BUSINESS OF CUSTOMER.

Expanding Research • A Natural Language search is often used as a check against missing relevant articles that were not retrieved by a Terms and Connectors search. • Database: ALR • Natural Language search: employer "vicarious liability" (“respondeat superior”) for assault ("intentional act" "intentional tort") • One of the first documents retrieved is the same document you found using theALR print index and the Terms and Connectors search. • You can now proceed with confidence that this article will provide detailed analysis and citations to enable you to efficiently expand your research.

The Process of Legal Research