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Legal Research Exercises # 4 James Leonard Shepard's ...

  1. 1. Legal Research Exercises # 4 James Leonard Shepard’s & KeyCite/Secondary Sources Creighton Miller Fall 2007 Robert Marshall INSTRUCTIONS 1. All answers should be typed on a separate answer sheet. Be certain to include your name, box number and legal research instructor on your answer sheet. (Please do not turn in your assignment until this information is at the top of the answer sheet.) You DO NOT need to follow the formatting requirements for Legal Writing assignments. 2. The Legal Research Assignment Oath MUST be printed out, signed and attached to your completed answer sheet. Assignments that do not include the signed oath will not be accepted. The oath sheet is available both through E-Reserves and from the Legal Writing website at 3. You should have 26 pages. Please count them after you’ve received your assignment. 4. If you encounter problems performing the research tasks required, consult the explanations in your text and the handouts and assignments for this class. If these sources do not resolve your problems, you may consult with a legal research instructor or reference librarian. You may also consult with other library personnel if you cannot find a source or need help operating the heavy equipment required for this assignment. You may not discuss the questions on this assignment with anyone else. You must answer all questions using the sources indicated and may not use Westlaw, Lexis or the Internet to answer any questions, unless specifically instructed to do so. 5. You absolutely must return any books you remove from a shelf to their proper place as soon as possible. There are a lot of legal research students working on this assignment, all of whom need to use these books. You may not, under any circumstances, remove materials from the shelves and keep them in your carrel or in another location for an extended time, i.e., more than 10 minutes. You are to use the materials only for the fairly short amount of time it takes you to answer the question(s) for which they are required. 6. Note that some of the questions on this assignment consist of multiple parts. Sometimes you are presented with a choice of which part to answer, other times you are required to answer all parts of a question. Read the directions for each question carefully. 7. This assignment is due at the beginning of the research class scheduled for October 17, 18 or 19, 2007. For the precise date and time, see the Class Schedule and Assignments document for your individual Legal Research and Writing section. 1
  2. 2. As you may have already noticed, this assignment is outrageously long. Before you finalize the details of the vengeance you plan to reap upon us, however, please grant us just a moment to present a few points in defense. First, a good bit of the material in this assignment consists of illustrations designed to help step you carefully through the relevant research processes; there are far fewer questions than the bulk weight of this packet would suggest. Second, this assignment effectively makes up two separate assignments. That may not sound like much of a defense, but really we are just giving you the next two weeks’ assignments (Shepard’s & KeyCite and Secondary Sources) at one time. This means you get an extra week to work on what would otherwise have been the second assignment. Finally, the assignment is not due until October 17, 18 or 19 (depending on the meeting time for your particular research section), so you have a full three weeks to work on it. All that being said, the assignment is still really long. Please don’t wait until the night before it is due to start this assignment. You will not be able to complete it if you do not give yourself plenty of time to work on it. This is not hyperbole; you really can’t finish it if you wait too long. Please start early. Sincerely, Your Legal Research Instructors Part I—Legal Citators: the Shepard’s and KeyCite Services Citators are a general class of research materials designed to help you find sources that have cited a source that you already have. Traditionally, the discipline of law relied heavily on one particular series of citators, called Shepard’s Citations. More recently, after Shepard’s was purchased by Lexis, West has developed its own citator, an online tool integrated within WestLaw that is known as KeyCite. We’ll take a look at the electronic versions of both of these legal citators. There are two basic uses for Shepard’s and KeyCite: • Verification: to make sure that precedent you are analyzing remains good law, i.e., that it hasn’t been overturned; and • Research: to find other sources that cite to the legal material you’re analyzing, in the hopes that these new sources deal with similar subjects as or shed further light on the law you have already found. While you will most commonly use Shepard’s and KeyCite to look up, or “citate,” cases, understand that you can also use both services to find materials that have cited other research sources, including statutes and some secondary sources. Nonetheless, most legal researchers use Shepard’s and KeyCite primarily to check cases, and the language in this assignment generally will refer to this process. 2
  3. 3. An important note on terminology: A cited case is the case which you are Shepardizing or KeyCiting; the citations you’ll find using Shepard’s or KeyCite refer you to citing cases, cases that have cited to your case. Repeat this over and over until your tongue falls out: Citing cases cite the cited case. Here is a classic, if somewhat abstract, illustration of this terminology: Online Legal Citators—Treatment Signals When you find or pull up a case or other legal resource on either Lexis or Westlaw, whether by searching a database or using the Find or Get a Document commands, there is a strong likelihood that you will see a curious colored symbol attached to the document. These symbols are designed to indicate the precendential value of the case being researched. On both services, the symbols should remind you of the importance of citating the case. The charts on the following page (which aren’t as colorful as I would like) show the most important symbols to recognize when using Lexis (Shepard’s) and Westlaw (KeyCite), respectively. Shepard’s Signals on Lexis: KeyCite Symbols on Westlaw: 3
  4. 4. For both systems, the red signals (red stop sign on Lexis; red flag on Westlaw) indicate that the case has been reversed on at least one point of law. As you might expect, there are several caveats you should keep in mind when reviewing these signals; as a general rule, they shouldn’t be interpreted at face value. For instance, a red flag/stop sign doesn’t necessarily indicate that the cited case has been reversed on all points of law. A higher court may be reversing only one point in the lower court opinion; the rest of the lower court ruling may still be intact. It’s always incumbent upon a researcher, when seeing a red-flagged case, to read the citing case(s) in order to determine whether or not any of the cited case’s precedential value remains intact. Interpreting yellow flags is a bit more troublesome. Both systems say that a yellow flag/triangle indicates that a case has some negative history, but the use of the word “negative” is rather misleading if you assume that a case with negative history is also a case with weakened precedential value. A case may be yellow-flagged if another court has refused to apply it as precedent, which doesn’t necessarily indicate that the citing court has challenged the case’s validity. If you have a case that’s been yellow-flagged, you need to look at the citing cases that are the cause of the yellow-flag. You may find that courts are willing to apply the precedent of your case only under narrow circumstances (limited), or that a court finds that the case is inapplicable given the specific facts at bar (distinguished). In such circumstances, the case will remain perfectly valid for other purposes. Lexis’ new orange Q signal (listed above) is an attempt to recognize those cases that have not been reversed, but that have been limited insofar as precedent is concerned because of other circumstances, e.g., a statute which has changed the law since the cited case was handed down. KeyCite Sign on to Westlaw ( using your previously registered and activated Westlaw password. If necessary, navigate to the Westlaw research screens by clicking on the link labeled “Research now on Westlaw.” You should end up looking at a screen similar to the one reproduced in part below. 4
  5. 5. Notice that you can immediately access the KeyCite service from this page (white arrows). As you should have read earlier in this assignment, however, you can also access KeyCite information through other areas of Westlaw. For these questions, we’ll be using the Find command, also highlighted above (grey arrow). Question 1: We want to see the KeyCite results for Ex Parte Exxon Corp., 725 So. 2d 930 (Ala. 1998). Begin by typing the citation (that’s the “725 So. 2d 930” part) into the “Find by citation:” box and clicking “Go.” You should see something resembling the screen shot below, a typical Westlaw case display. The first thing you should notice about this case is the presence of yellow flags. These are KeyCite signals. This flag should signal you that there may (or may not!) be some limitation on the precedential value of your case. Notice next the list of links under the yellow flag in the frame on the left. Remember that there are two reasons to Shepardize or KeyCite a case: 1) to see if the case remains valid as precedent, and 2) to find further research materials. The “Full History” link will give you the appellate history of your case and any negative citing references. The “Citing References” link will give you a complete list of all sources that have cited your case. For now, choose the “Full History” link. It should bring you to a page that includes information similar to that below: 5
  6. 6. This screen gives you two important pieces of information. Under the heading “Direct History,” you see all published opinions (actually, to be literal, all opinions available through Westlaw) in the litigation that yielded the case we are KeyCiting. The opinion listed in grey with a blue arrow will always be the opinion you actually KeyCited. In this case, the litigation at issue has only resulted in one opinion, the one you looked up (725 So. 2d 930). Under the heading “Negative Citing References,” you see all opinions that have cited our case and had something “negative” to say about it. Remember, “negative” is not a very accurate adjective for these purposes. Each of the citing cases listed here has “distinguished” our case, which merely means that these opinions have determined that the holding of our case did not control in different factual situations. This does not in any way challenge our case’s continuing value as precedent. 1. On your answer sheet, list the most recent case to have cited our case (725 So. 2d 930) in a purportedly “negative” context. (You will actually need to look the case up as described. The illustrations above may be out-of-date by the time you sit down to answer this question.) Question 2: In the illustration above, notice that each of the negative citing references has a KeyCite signal of its own attached to it. E.g., notice the red flag associated with Pickett. These signals do not apply to the cited case—the case you are looking up. They apply, instead, to the citing cases themselves. In other words, the red flag attached to Pickett is not telling you that Pickett overturned your case, Ex Parte Exxon Corp., 725 So. 2d 930, but that Pickett, itself, has been overruled or reversed. If you want to know further details, you’ll need to find the KeyCite results for Pickett, a fairly simple proposition. 6
  7. 7. There are two hyperlinks contained in the citation to Pickett as listed in our KeyCite results. First, notice that, if you click on the blue, underlined number in front of Pickett, Westlaw will bring up the citing case (Pickett) in a new window. Do this. Notice that Westlaw takes you directly to the portion of the Pickett opinion that discusses our case. Read the short portion of Pickett discussing our case (Ex Parte Exxon Corp., 725 So. 2d 930). Do not click the button labeled “Maximize,” as that will drastically and unnecessarily complicate your life. 2A. According to Pickett, the Exxon court held that Alabama’s consumer protection statute specifically prohibited something. What did it prohibit? Click the button labeled “Cancel” to close the extra window in which you’ve been viewing Pickett. The second hyperlink attached to the citation to Pickett in our KeyCite results is the red flag itself. Clicking on this flag will take you directly to the KeyCite results for the Pickett opinion. Go ahead and click on this flag. You are now looking at the “Full History” display for Pickett. As with the results we saw for Ex Parte Exxon, the display provides both the direct appellate history of the Pickett litigation and any negative citing references for Pickett. Since Westlaw attached a red flag to Pickett, there should be a reference somewhere in these results to a case that either overruled or reversed the Pickett, 6 P.3d 63, decision. 2B. List on your answer sheet the name and citation for an opinion that either overruled or reversed the decision in Pickett, 6 P.3d 63. Question 3: 3. Use the Find command to access State v. Perez, 628 So. 2d 241 (La. App. 1993). (You can do this from the Westlaw entry page, like we did for question 1, or you can access the find command from any Westlaw page by clicking on the link labeled “Find&Print” at the very top of the screen.) Once you have pulled up the Perez decision, click on the “Full History” link to bring up the KeyCite results. Would you cite this case as support for your argument? Why or why not? Your answer should include a reference to a citing case you’ve found via KeyCite that supports your contention. Those of you who have been paying particularly close attention thus far should have noticed that the KeyCite results we’ve been looking at contain a number of strange symbols that we have not discussed. In particular, you will often see green stars, purple quotation marks, and boldface references to “HN” numbers (kind of like a particularly twisted bowl of Lucky Charms®…). The green stars ( ) are “depth of treatment” codes that indicate the degree to which the citing reference addresses the case you looked up. One star means your case was barely mentioned; four stars means your case was discussed in depth, etc. Purple quotation marks indicate that language from the cited case was quoted in the citing reference—a fact that is rarely worth knowing. You will see both of these symbols again in the questions below. 7
  8. 8. IMPORTANT NOTE: Look carefully at the screen of Full History results you have found and compare it to the previous image in this assignment. IF YOUR RESULTS SCREEN DOES NOT INCLUDE THE HEADNOTE REFERENCES DISCUSSED BELOW—e.g., HN: 1, 4, 7 (So.2d)—PLEASE SEE THE APPENDIX TO THIS ASSIGNMENT!! Your password preferences will need to be set to display headnote references; the appendix contains directions for doing this. If you DO see these references, you can ignore the directions in the appendix. I sincerely apologize for this complication. Unlike these other symbols, the boldface references to “HN” numbers are pretty important. These are references to headnotes. (You should know by now what headnotes are; look in your textbook and redo your second assignment if you don’t.) The point of these references is to let you know which issues from the cited case are being addressed in the citing cases. This is a point that really seems to confuse new legal researchers. Past students have often confused these signals for references to headnotes in the citing case, assuming—I guess—that it would be valuable to know the precise location in the citing case where the cited case is discussed. This would be valuable, which is why clicking on a link in KeyCite to a citing case takes you directly to the portion of the citing case that mentions the case you looked up. (We did this in question 2A, a page or so back.) The headnote references are there for a completely different reason—to let you know which issues from the case you looked up are being addressed in the citing reference. Here’s a KeyCite entry that you might remember from an earlier question: This is one of the citing references we saw when we looked at the Full History result for Ex Parte Exxon, 725 So. 2d 930. Like most cases, Ex Parte Exxon addresses multiple legal issues— seven of them, according to the editors at West. The entry above tells us that the Pickett case cites Ex Parte Exxon in reference only to those issues summarized in headnotes 1, 4 and 7 of Ex Parte Exxon. If you are really only interested in the issue summarized in headnote 6 of Ex Parte Exxon, then you may be able to disregard Pickett. There is an important caveat here, however—you can’t always trust the editors at West. Imagine that you are interested only in the issue summarized in headnote 3 of a particular case. Imagine further that you look at the KeyCite results for your case and see a citing reference listed as having overruled your case and that the citing reference in question includes a headnote reference reading “HN: 4.” You might be tempted to think that your case has been overruled only as to the issue summarized in headnote 4 and that the information you care about, summarized in headnote 3, remains good law. That might be right, but you’d better go ahead and take the time to read the overruling case, because the editors at West have been known to be wrong. 8
  9. 9. Question 4: 4. Use the Find command to pull up Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675 (Tex. 2002). Click on the “Full History” link to bring up the KeyCite results. List on your answer sheet the name and cite for a case listed as a negative citing reference that has cited Stromboe with reference to the issue contained in headnote 11 from Stromboe. You can also use KeyCite as a tool for finding further research materials. Assume you have one case on a research issue in which you are interested. Other cases and research materials that have cited your case are likely either to discuss the proper interpretation and application of the original case or to discuss similar issues. You can find a (relatively) comprehensive list of citing cases and other citing materials using the KeyCite Citing References link. Question 5: Once again, use the Westlaw Find command to pull up Ex Parte Exxon, 725 So. 2d 930. This time, instead of looking at the Full History, click on the link labeled “Citing References,” which is highlighted below: You should now see a screen containing a fairly long list of citing references. The first set of references you see, labeled “Negative Cases,” will be the same as the list of “Negative Citing References” that you saw through the Full History display. Farther down, you’ll see a list of cases labeled “Positive Cases.” Notice that these Positive Cases are organized according to depth of treatment. Those with the most treatment stars—those that discuss your case in the greatest depth—are listed first, followed by cases with less extensive treatment of the case you looked up. Following these lists of cases, you should see citing references that refer to other kinds of research materials: administrative materials, secondary sources, and court documents. 5A. Using the Citing References display, find a case that has somehow positively referenced Ex Parte Exxon with regard to the issue discussed in headnote 5 of Ex Parte Exxon. List the name and cite for this citing case on your answer sheet. 5B. List the name and cite for any one case that includes a quotation from Ex Parte Exxon. 5C. List the title and citation for an article from the Alabama Lawyer that 9
  10. 10. references Ex Parte Exxon. (The Alabama Lawyer is the journal of the Alabama State Bar Association. Its Bluebook abbreviation is “Ala. Law.”) Question 6: Use the process we’ve been practicing to Find and pull up Continental Casualty Co. v. DuPont School Dist., 317 A.2d 101. Click on the Citing References link that appears in the left-hand frame to access the complete KeyCite results. Assume that you want to find any Iowa state court cases that have cited Continental Casualty. In order to do this, look first at the small link at the bottom left of the main frame that looks remarkably like the following graphic: Click on the Limit KeyCite Display button; the resulting page will allow us to limit the results we retrieve when keyciting by jurisdiction, date, headnotes, etc.: Since we’re attempting to find Iowa cases that have cited Continental Casualty, you should select the Jurisdiction icon. After making that selection, look at the resulting screen, make the appropriate selection of jurisdiction, and then click on the button marked “Apply.” 6. List the name and cite for an appropriate Iowa case on your answer sheet. Question 7: You can use the Limit KeyCite function to limit results based on lots of different criteria. Use the techniques we’ve been practicing to access the Citing References display for American Stevedores v. Porello, 330 U.S. 446 (1947). As you should notice, this case has hundreds of citing references. If you’re only interested in finding cases from the 11th circuit that have addressed the issue summarized in headnote 2 of Porello, you can set the limits accordingly. Click on “Limit KeyCite display.” Click the icon labeled “Headnotes” and check the box next to “ .” Then, click on the icon for jurisdiction and check the box that applies to the Eleventh Circuit Court of Appeals. 10
  11. 11. Finally, click the button labeled “Apply.” 7. List on your answer sheet the name and cite for an appropriate case. Shepard’s Access lexis at, and sign in using the username and password that you set up when you registered for Lexis. The kind folks at Lexis have provided a number of helpful resources for learning to use the various portions of the Lexis system. You will be taking advantage of their tutorial on using Shepard’s. Feel free to try out any of their other fine educational offerings whenever you find yourself bored or in need of enlightenment. After signing on, you should be on the main Lexis law school information screen. On the top of the left side of the screen should be a collection of links labeled “LexisNexis for Students.” The page should look a great deal like the image below: Select the link that says Study Aids On the succeeding page, move your mouse over Learn to Research; that will generate a pop-up (not shown) that includes a link for Self-Paced Tutorials. Select that link. 11
  12. 12. On the succeeding page (which should look remarkably like the image below) select Basic Shepard’s Skills and complete the resulting tutorial. This tutorial is designed with insightful explanations in the frame on the left and exciting examples to the right. Read through the text and refer to the examples as indicated. At various points in the text you will come across “Research Tips” marked by little, yellow light bulbs. E.g.: Run your mouse pointer over these tips for detailed information: At the end of each page of text, click the link to proceed. Once you’ve finished reading the tutorial, you will be presented with a link labeled “Take the Quiz.” You must take this quiz and submit it by email to complete this assignment. a) Follow 12
  13. 13. the link; b) complete the quiz; c) send the results to Creighton Miller by filling in his email address,, in the appropriate box at the end of the quiz. Students in ALL legal research sections should send their results to Mr. Miller, including students in Mr. Marshall’s and Prof. Leonard’s sections. Do NOT check the box for sending your results to the school’s account representative. Question 8: 8. In addition to properly submitting your quiz results to Mr. Miller, please indicate on your answer sheet that you have completed the Shepard’s tutorial and quiz and emailed the results as requested. Part II—Legal Secondary Sources As you no doubt recall from various legal research and legal writing lecturers, research sources can be divided into two groups: primary sources and secondary sources. Primary sources, for the discipline of law, consist of those sources that contain actual law. Secondary sources consist of everything else; they’re generally described as sources that are written about the law. Secondary sources, while they have no precedential value, are extremely useful. They can provide the context and background necessary for understanding the law. They can provide citations to sources of law. They can help you stay up-to-date on changes to the law. They can serve as valuable study materials for law school exams. (Hint: if you skimmed over that last sentence without really internalizing the message, go back and read it again….) They can present novel or unusual arguments that provide the impetus for legal change. In other words, we kind of like them. Perhaps the most important of the uses listed above is the one we listed first. Secondary sources are an excellent place to start any research task because they can provide context. Unlike court opinions—which are primarily designed to settle a specific case or controversy—and unlike statutes—which are carefully drafted to accomplish specific policy goals—secondary sources are intended to explain the law. Thus, they tend to present the law as a coherent whole rather than fixating on some narrow aspect of a particular legal question. If you start your research with secondary sources, you’ll have a mental framework with which to understand the details that you then glean from specific cases, statutes, and similar sources of law. Furthermore, as first year law 13
  14. 14. students, you simply don’t know all that much law; you’ll need some background before you can adequately define the issues you need to research. Secondary sources are where you go to get that background. TREATISES, HORNBOOKS, ETC. At least half of the books in our library are treatises (pronounced tree-tiss, not tree-tees), hornbooks, etc. A treatise, if you don’t remember, is a scholarly book or multi-volume set that provides in-depth discussion of a single legal subject (like torts, civil procedure, government contracts, or the First Amendment). A single volume treatise is often called a hornbook. Please understand that not all books, not even all books in a law library, qualify as treatises. Treatises approach the law from a legal perspective. Other books that approach the law from other perspectives (historical, anthropological, literary, conspiratorial, etc.) may well be quite useful, but they aren’t treatises. Treatises serve as excellent places to find background information on an area of law with which you are unfamiliar. As they are generally well updated—either by pocket parts or through the replacement of loose-leaf pages—they are also good for keeping up-to-date with changes in the law. Finally, like many legal sources, treatises include a wealth of citations to important precedent, meaning that you can walk away from using a treatise with both a good background understanding of an area of law and a list of the most important cases, statutes, etc. Thus, starting your research with a treatise can often cut in half the amount of time you need to spend on further research. So, unless you’ve developed a real fondness for the digest system or the aesthetic grandeur of an annotated code, consider starting your research with a treatise. (The legal encyclopedias, Am. Jur. and C.J.S., can also serve these purposes when you don’t have access to a good treatise on your topic.) Keep in mind that treatises come in a number of flavors. They range in size from single volume hornbooks to huge sets running to dozens of volumes. Some are kept quite current, others are updated on a schedule measured in geological time. Some treatises are state specific, covering the most minuscule details of a single state’s laws, while others are more general and multi- jurisdictional, often providing a greater depth of analysis and occasionally exerting substantial persuasive authority over courts and judges across the country. Each of these varieties can prove valuable under the right circumstances. Many treatises in our law library, particularly those dealing with Alabama law, are kept behind the reserve desk. This is true for all of the treatises referenced in the questions below. 14
  15. 15. Question 9: Answer ONE of the next four questions. Each question deals with a different treatise; all of the treatises for these questions are located on reserve. You will need to 1) run a search on Atticus for the book listed in the question, 2) find the proper call number for the book, and 3) ask for the appropriate volume at the circulation desk. You MUST have a call number to get the book–I will specifically instruct the circulation desk staff not give out any of these books unless you give them a proper call number. (Please answer only one of these subparts.) A) ROBERT FABRIKANT, ET AL., HEALTH CARE FRAUD: ENFORCEMENT AND COMPLIANCE (1996 & Supp. 2007). You’ve been asked by a senior partner to research questions surrounding whistleblower actions by so-called “private attorneys general” under the federal False Claims Act (FCA) as a means of combating fraud by health care providers. Using the index to this treatise, find a section addressing the role of private attorneys general under the FCA. Scan this section for background info. What is the name given to the form of action under the FCA involving a suit by some person or entity besides the U.S. Attorney General? Answer the question and list the section of this treatise in which you found your answer. (List the exact section number.) B) PENNY A. DAVIS & ROBERT L. MCCURLEY, ALABAMA DIVORCE, ALIMONY AND CHILD CUSTODY HORNBOOK (4th ed. 2005). You are researching a question involving a potential common law marriage. As you know very little about the law surrounding common law marriage in Alabama, you decide to start by acquiring some background information on the law. Using the index, find a section of this treatise that discusses the basic elements of a common law marriage. Scan this section. What three basic elements must exist to establish a valid common law marriage under Alabama law? In what section of this treatise did you find your answer? (List the exact section number.) C) ROBERT B. THOMPSON, O’NEAL AND THOMPSON’S CLOSE CORPORATIONS AND LLCS: LAW AND PRACTICE (Rev’d 3rd ed. 2004 & Supp. 2007). (This is a two volume work; you will need both volumes.) Your client is the principal shareholder in a small corporation. (Such small corporations are generally referred to as “close corporations.”) He’s concerned that he may be held personally liable for certain tortious actions undertaken by the corporation. Your senior partner is unperturbed, explaining to you that courts almost never “pierce the corporate veil” to hold shareholders personally liable for corporate action. Nonetheless, she asks you to research the issues for yourself. Using the index, find a section in this treatise discussing the doctrine of piercing the corporate veil and specifically comparing the differences in application of the doctrine to close corporations and public corporations. Scan the section you found. A few pages into the section is a discussion of statistics regarding successful attempts to pierce the corporate veil in cases involving close corporations. About how often are such attempts successful? In what section of this treatise did you find your answer? (List the exact section number.) D) JESSE P. EVANS, ALABAMA PROPERTY RIGHTS AND REMEDIES (3rd ed. 2004 & Supp. 2006). Your client claims to own a certain piece of prime real estate. A neighbor with whom your client has had numerous legal disputes has been informing everyone he meets that your client doesn’t really own the property, but has merely been squatting on it for years. Your client is righteously indignant and wants to sue. You need to research 15
  16. 16. questions surrounding the claim of slander of title. Using the index, find a section of this treatise discussing the elements of an action for slander of title. Does such an action require proof of damages? If so, how does the treatise describe this element of the action? Answer yes or no, provide the description (if appropriate), and cite the exact section number for the section of the treatise in which you found the answer. LEGAL ENCYCLOPEDIAS American Jurisprudence, Second Series (Am. Jur. 2d) and Corpus Juris Secundum (C.J.S.) are the two major legal encyclopedias. Essentially these two sources provide readers with brief explanations of the law on various topics. You can think of them as particularly huge and somewhat cursory treatises encompassing pretty much the entire body of law. Like treatises, they are best for finding basic background information on an area of law and for collecting citations to some of the most important precedent in the area. In our library, both sets are located on the short shelves. (The short shelves are the, uh, shorter shelves near the large windows on the main floor of the library; they’re on the northern side of the library, if you have your compass in hand. That’s the side closest to Bryant Dr. and, for that matter, Canada.) There isn’t a whole lot of difference between the two sets. I use Am. Jur. 2d more often because its index seems to be easier to use. Whichever set you choose to use, make sure you are using one of the two current encyclopedias. In addition to Am. Jur. 2d and C.J.S., we keep two older, out of date, precursor encyclopedias, Am. Jur. (the 1st series) and Corpus Juris (C.J.), on the short shelves. Be sure you are using the second series of each encyclopedia (2d or Secundum, as appropriate) for the following questions. If you choose to use Am. Jur. 2d, exercise further care to make sure you don’t confuse it with the similarly named, but completely different, sources Am. Jur. Trials, Am. Jur. Legal Forms, or Am. Jur. 2d Guide to the Wit and Wisdom of Paris Hilton, all of which are also kept on the short shelves. (Actually, the last one is almost always checked-out....) The schematic below indicates exactly where these sources can be found on the short shelves: Window Am. Jur. 2d Study Area C.J.S. Stairs and Library Entrance 16
  17. 17. Question 10: Answer ONE of the next four questions, labeled A thru D. (Answer both subparts of whichever question you choose.) Do not use Westlaw and/or Lexis to answer these questions. A. Look at 37 Am. Jur. 2d Fraudulent Conveyances § 7. This section details the concept of constructive fraud as it applies to fraudulent conveyances (generally, an attempt to defraud creditors by transferring one’s property to someone else). Scan the section. a) How does this section define the term “constructive fraud?” b) Are there any new cases that fall under this section summarized in the pocket part? If so, cite such a case. B. Look at 7A Am. Jur. 2d Automobile Insurance § 373. This section deals with general issues surrounding an insurer’s duty to settle or compromise. Scan the section. a) Does an insurer’s duty to settle or compromise also encompass a duty to initiate settlement negotiations? Answer yes or no and list any exceptions that apply to your answer. b) Are there any new cases that fall under this section summarized in the pocket part? If so, cite such a case. C. Look at 72A C.J.S. Products Liability § 153. This section addresses liability for injuries caused by defective athletic or recreational equipment. Scan the section. a) In addition to the doctrine of strict liability, name three other grounds for liability for damages caused by such equipment b) Are there any new cases that fall under this section summarized in the pocket part? If so, cite such a case. D. Look at 3 C.J.S. Aliens § 581. This section deals with the arrest of aliens without a warrant by authorized officials of the Bureau of Customs and Border Protection. Scan the section. a) Under what circumstances do authorized officials have the power to make such an arrest without a warrant? b) Are there any new cases that fall under this section summarized in the pocket part? If so, cite such a case. LEGAL FORMS AND FORMBOOKS In addition to commentary, many hornbooks and treatises include examples of legal documents. While we generally refer to these documents as legal forms, these forms are not usually designed to be filled in, printed out and submitted to a court. Instead, they’re meant to be used as examples or as templates that can be adjusted and reworked to fit your exact needs. Adjusting these forms to meet your own needs is crucial, since no legal situation is exactly like any other. If your client wants you to draft a contract, he or she probably needs a contract that addresses precise legal situations and concerns. After all, if clients could get the contracts and other documents they 17
  18. 18. needed just by looking in the right books, librarians would probably make more money than lawyers. (They don’t, in case you’re wondering.) Before you are tempted to rely on a legal form, be certain to consider the following questions. 1) Does this form address all of the legal issues you need to cover? 2) Does this form actually track the specific law of your jurisdiction? (Some forms are designed for a specific jurisdiction, but most are more generic and may not follow the quirks and peculiarities of your state’s law.) 3) Is the form up-to-date? (As you may have noticed by now, the law has a tendency to change.) Occasionally you will find a form that you can just copy and fill in—just don’t count on it. While many treatises contain some forms, we also have access to entire books and even large sets of books just chock full of forms—these are generally known as form books. Some form books are organized by specific subject or jurisdiction, e.g., Alabama Civil Practice Forms. Others are more comprehensive, like West’s Legal Forms. You will also find that individual law firms often have their very own form books or form files for use by the firm’s lawyers. Question 11: Answer ONE of the following 4 questions. Each of the questions can be answered using the indicated set of form books. All of the sets involved are kept in our library on the short shelves located near the picture window at the northern end of the main room on the top floor of the library. (North is the direction of Bryant Dr. and the front of the law school.) The schematic below shows the general location within the short shelves of each of the sets: Window Federal Am. Jur. Procedural Pleading & Forms Practice Forms Study Area West’s Am. Jur. Legal Legal Forms Forms 2d Stairs and Library Entrance A). For this question, you need to use Am. Jur. Legal Forms, 2d, one of the more well- known form book sets. Be absolutely sure that you are using Am. Jur. Legal Forms, 2d, NOT just Am. Jur. and NOT Am. Jur. Pleading and Practice Forms. Find an example of a clause in a separation agreement regarding the payment of hospital and medical insurance as an element of child support. You will probably want to start by looking in the index at the end of Am. Jur. Legal Forms, 2d. You may need to check under various index topics. Forms in Am. Jur. Legal Forms, 2d are arranged by title 18
  19. 19. number and section number (e.g., 26:108). a) What are the title number and section number for the form you found? b) Are there any changes to the form appearing in the pocket part? (If your volume is particularly recent, it may not include a pocket part. If so, state that as your answer.) B). For this question, you need to use Federal Procedural Forms, one of the more well- known form book sets. Be sure you are using the set of books with this precise title. Assume your client has been sued for repayment of an outstanding consumer debt. Find an example of an answer that alleges the debt is not enforceable as an extortionate extension of credit under the Truth in Lending Act. You will probably want to start by looking in the index at the end of Federal Procedural Forms. You may need to check under various index topics. (Note that the Truth in Lending Act is concerned with consumer credit protection.) Forms in Federal Procedural Forms are arranged by title number and section number (e.g., 12:231). a) What are the title number and section number for the form you found? b) Are there any changes to the form appearing in the pocket part? (If your volume is particularly recent, it may not include a pocket part. If so, state that as your answer.) C). For this question, you need to use West’s Legal Forms, one of the more well-known form book sets. Be sure you are using the set of books with this precise title. Find an example of a contract regarding the supply of propane. You will probably want to start by looking in the index at the end of West’s Legal Forms. You may need to check under various index topics. Forms in West’s Legal Forms are arranged by volume and section number (e.g., vol. 9, §451). a) What are the volume and section number for the form you found? b) Are there any changes to the form appearing in the pocket part? (If your volume is particularly recent, it may not include a pocket part. If so, state that as your answer.) D). For this question, you need to use Am. Jur. Pleading & Practice Forms, one of the more well-known form book sets. Be absolutely sure that you are using Am. Jur. Pleading & Practice Forms, NOT just Am. Jur. and NOT Am. Jur. Legal Forms, 2d. Find an example of a motion for contempt for failure to obey an injunction in a case involving patent infringement. You will probably want to start by looking in the index at the end of Am. Jur. Pleading & Practice Forms. You may need to check under various index topics. Forms in Am. Jur. Pleading & Practice Forms are arranged by topic and section number (e.g., Divorce §17). a) What are the topic and section number for the form you found? b) Are there any changes to the form appearing in the pocket part? (If your volume is particularly recent, it may not include a pocket part. If so, state that as your answer.) 19
  20. 20. LEGAL PERIODICALS The Library's chief legal periodicals indexes are the Index to Legal Periodicals (ILP)—a print set that is rarely used these days—and the Legaltrac electronic database. You can access Legaltrac from any internet-connected computer, located on- or off-campus. To access the service from off-campus, you’ll be asked to login using your Bama account username and password—the same info you use to access MyBama services (registration, BamaMail, etc.). Access LegalTrac by browsing to the law library Indexes & Databases web page at LegalTrac is listed under Legal Materials > Law Review and Journal Articles. Click on the link and, if you are asked for it, enter your login information. Lexis and Westlaw both contain the full text of some law reviews. Coverage on both systems, however, is decidedly incomplete. Furthermore, the coverage of the two systems is not the same; there are periodicals on Westlaw that aren’t on Lexis, and vice-versa. LegalTrac provides coverage for many more law review articles than you will find on Lexis or Westlaw, but in many cases it will provide only a citation rather than the actual text of the article. Thus, for many—though not all—of the articles that you find through LegalTrac, you will need to look elsewhere to find the text of the articles. Many such articles can be found through Westlaw or Lexis; some will be available through other library databases, in particular the HeinOnline service; some may be available only in print at your friendly neighborhood law library. All periodicals, with the exception of those published on microfilm, are shelved on aisles 33 through 68A in our law library. These aisles are on the library’s top floor, on the opposite side of the main room from the reporters you have used in other exercises. The periodicals are in rough alphabetical order, e.g., aisle 33A contains the Alabama Law Review and aisle 68A contains the Yale Law Journal. However, there are some quirks in the order. If you can’t find a set of periodicals by looking in what you think is the appropriate alphabetical order, then you’ll need to run a title search on Atticus (the library’s online catalog) and locate its call number. (All periodical call numbers will begin with a P.) ************************************************************************ Harvard International Law Journal, Wntr 1980 v21 n1 p275-282 International taxation: currency sales to offset value decline of overseas investments. Marjorie Rawls Roberts. ************************************************************************ LegalTrac does not present citations in typical Bluebook form. For example, the Legaltrac entry above refers to an article written by Marjorie Rawls Roberts that appears in volume 21 of the Harvard International Law Journal. The article begins on page 275. (In order to easily find an article, you’ll usually need to know the title of the journal, its volume number, and the page on which the article appears.) 20
  21. 21. Question 12: Use Legaltrac to find an entry similar to that above for one of the following articles. I strongly suggest that you use a keyword search from the Basic Search screen. (See illustration below.) Keyword Option When viewing your search results, you may need to check for results listed under both the “Academic Journals” and “Magazines” tabs. (LegalTrac inexplicably classifies most law reviews as academic journals but some as magazines. While few major law reviews are placed in the magazines category, you cannot assume that the law reviews listed as “academic” are any better [or worse…] than those listed as magazines. Please note that bar journals, though useful, are not academic sources and should not be used as such.) Be sure to check for results under both of these tabs Once you have found the appropriate LegalTrac reference, you will need to use the information provided to find the actual law review article in our library, as described above, in order to answer these questions. (Answer only one of the following four subparts.) A) Find a 1981 article from the Journal of Psychiatry and Law dealing with the right to refuse mental health treatment. Following the second paragraph of this article is an extended quotation from a great work of modern literature. What is the title of this masterpiece? (The true philistines among you who do not recognize the quotation may need to look to the article’s end notes to find the book’s title….) In addition to this information, provide the title and cite of the article you referenced when answering this question. B) Find a 2007 New England Law Review article discussing a so-called “dangerous patient” exception to the psychotherapist-patient privilege in criminal trials. The third spine-tingling paragraph of the article references a 1996 U.S. Supreme Court case that sought to answer the question of whether the Federal Rules of Evidence provide a privilege for psychotherapist-patient communications. What is the name and cite for that case? In addition to this information, provide the title and cite of the article you referenced when answering this question. C) Find a 1984 Indiana Law Review article that discusses a right to refuse antipsychotic medication. The fourth earth-shattering paragraph notes that “two federal appellate courts have expressly recognized a qualified constitutional right to refuse antipsychotic 21
  22. 22. medication.” Note the name and citation for one of these court decisions. (You need only provide the appellate citation—that will be a cite to F.2d.) In addition to this information, provide the title and cite of the article you referenced when answering this question. D) Find a 2005 Howard Law Review comment that discusses the effects of the so-called “dangerous patient” exception to the psychotherapist-patient privilege on African American access to mental health services. The first electrifying paragraph of the article refers to a U.S. Supreme Court case that recognized a psychotherapist-patient privilege under Federal Rule of Evidence 501. Note the name and cite for that case. In addition to this information, provide the title of the article you referenced when answering this question. AMERICAN LAW REPORTS (A.L.R.) ANNOTATIONS A.L.R. annotations are articles which survey the existing case law on some narrow legal topic. This is a great source that I tend to push on law students. If you can find an annotation which covers the area you are exploring, then you are going to have a well-researched analysis of that topic right in front of you. As a given rule, the topics surveyed by an annotation are quite narrow in scope. Oil and Gas Royalty as Real or Personal Property and Snowmobile Operation as DWI or DUI are two typical annotations. If your work is centered on some broad topic (say, DWI or DUI in general as opposed to DWI in a snowmobile) then you probably are not going to find the A.L.R. annotations helpful. In the latter situation, you would be better off referring to a treatise or a legal encyclopedia for secondary material. (You should be able to distinguish A.L.R. from Am. Jur., by the way ….) The A.L.R.s are shelved on aisles 13-A and 14-A. The multi-volume A.L.R. Index is shelved on 14 -A. Students frequently froth at the mouth with a desire to use the A.L.R Digest, which is shelved immediately above the A.L.R. Index. However, you don’t need to use either set in any of these questions. A.L.R.s 3rd, 4th, 5th, 6th, A.L.R. Fed. and A.L.R. Fed. 2d are updated by pocket parts. These pocket parts provide short descriptions of cases on the subject of the annotation which were handed down after the publication of the annotation. Your text states that "[t]he first two series are so dated as to be of little use." I don’t think that is completely accurate. The A.L.R.2d can be updated by the use of a series of books known as the Later Case Service. This set is shelved on aisle 13-A immediately after the A.L.R.2d. Question 13: Answer ONE of the following four questions: A) Look at David P. Chapus, Annotation, Liability of School Authorities for Hiring or Retaining Incompetent or Otherwise Unsuitable Teacher, 60 A.L.R.4th 260 (1988). Notice that the annotation begins with a short table of contents, or “article outline,” followed by an index to the topics discussed in the annotation. Use these tools to find the section of the annotation that should discuss a case in which a private college was held not to be immune from liability for hiring allegedly incompetent swimming instructors. Find a Georgia case that meets this description. On your answer sheet, list the section (e.g., § 4[d]) of the annotation in which you found this case and note the name and cite of the case you found. 22
  23. 23. B) Look at Jay M. Zitter, Annotation, Liability of Internet Service Provider for Internet or E-Mail Defamation, 84 A.L.R.5th 169 (2000). Notice that the annotation begins with a short table of contents, or “article outline,” followed by a set of “research references,” followed in turn by an index to the topics discussed in the annotation. Use the “article outline” and index to find the section of the annotation that should discuss a case in which an interactive computer service provider was held to be immune from liability for defamatory statements against White House employees made by a gossip columnist using the computer service. Find a federal district court case that meets this description. On your answer sheet, list the section (e.g., § 4[d]) of the annotation in which you found this case and note the name and cite of the case you found. C) Look at Carol Schultz Vento, Annotation, Services Included in Computing Period of Service for Purposes of Teachers’ Seniority, Salary, Tenure, or Retirement Benefits, 56 A.L.R.5th 493 (1998). Notice that the annotation begins with a table of contents, or “article outline,” followed by a set of “research references,” followed in turn by an index to the topics discussed in the annotation. Use the “article outline” and index to find the section of the annotation that should discuss a case in which a school employee’s term of service as a department chairperson was held properly included in computation of the employee’s tenure status. Find a New York case that meets this description. On your answer sheet, list the section (e.g., § 4[d]) of the annotation in which you found this case and note the name and cite of the case you found. D) Look at Robin Miller, Annotation, Dental Malpractice: Root Canal Procedures, 7 A.L.R.6th 357 (2005). Notice that the annotation begins with a table of contents, or “article outline,” followed by a set of “research references,” followed in turn by an index to the topics discussed in the annotation. Use the “article outline” and index to find the section of the annotation that should discuss a case in which a dentist was sued for allegedly inserting a post into the wrong root canal. Find a New York case that meets this description. On your answer sheet, list the section (e.g., § 4[d]) of the annotation in which you found this case and note the name and cite of the case you found. REVIEW QUESTIONS Question 14: Find the following case: Morris v. Mooney, 343 S.E.2d 442 (S.C. 1986). A. Look at the 2nd headnote in the case; 1) note the topic and key number assigned to that headnote. Briefly outline how you would use— 2) the topic and key number assigned to the 2nd headnote to find cases on an issue similar to the one discussed in that headnote; and 3) KeyCite to find cases on an issue similar to the one discussed in the 2nd headnote. B. Using one of our many fine digests other than the South Eastern Digest 2d, find another case that includes a headnote assigned the same topic and key number that you noted in part A of this question. You may have to look in more than one digest. Note the 23
  24. 24. name and cite for that case, as well as the digest set you used. (Remember, the digests are shelved AFTER the related reporter set, aside from the Alabama Digest 2d, which is shelved on a table between aisles 24 and 25-A.) C. Look at a Words and Phrases volume that accompanies the Pacific Digest 3d. Find a case that defines the term “psychotherapist-patient privilege.” Note the name of that case and its cite. D. Briefly describe the circumstances in which you would use the Descriptive Word Index. (NOTE: The Descriptive Word Index is NOT the Words & Phrases Volume!) REMINDER! On your last legal research exercise of the fall semester, you will be asked to answer whether or not you have completed the CALI exercise entitled Legal Research 101: Tools of the Trade. This exercise is a multiple-choice review of legal research basics. In order to access this exercise, point your web browser to the following URL: Before you can access any of the materials on this website, you will need to login in the bluebox labeled “My CALI” on the right side of your screen. (I know that each of you has a personal CALI password because you certified that you had properly registered for and received one as the answer to the last question on your very first legal research assignment.) After logging in, click the menu item labeled “Lessons” in the blue menu bar at the top of the web page, and choose “Lessons by subject.” From the list of first year lessons, choose the link labeled “Legal Research.” Scroll down to find the lesson entitled “Legal Research 101: Tools of the Trade” (the lessons are listed in alphabetical order). Choose either the Flash (if you have the Flash Viewer installed on the computer you are using) or Web/HTML (if you don’t) versions of the lesson. NOTICE that the author of the lesson expects it to take you about an hour to complete. Please be aware that this particular CALI lesson includes some subjects, like administrative regulations, that we have not yet covered in class. This will be good for you; you might learn something new. Please also be aware that some of the questions in this lesson are…shall we say, subjective? One of your legal research instructors recently completed the lesson and got something less than a perfect score—he’s still extraordinarily annoyed. You, too, will likely find answers with which you disagree. That’s just fine. As long as you understand the author’s argument and why you disagree with it, then you’re doing quite well in legal research. 24
  25. 25. APPENDIX—Setting WestLaw Password Preferences to Properly Display Headnote References IF you do not see headnote references on your KeyCite displays, you will need to change your preferences as detailed below. To see if this problem applies to you, look at the KeyCite results you see while completing questions 1 through 3. You want to see citing references containing text similar to that highlighted below: If you see any such references (any bold text consisting of the abbreviation “HN:” followed by numbers), then your password works properly. In that case, please ignore these directions, and we apologize for the inconvenience. If you do NOT see these references, please follow these directions to turn this feature on. 1) Access the Westlaw preferences screen. On every page of Westlaw, you should see the following graphical information in the upper, right-hand section of your screen. Click on the link labeled “Preferences.” 2) Access the KeyCite preferences. The screen you are taken to should include the following links on the far left side. Click on the blue arrow in front of “KeyCite.” 25
  26. 26. 3) Activate all KeyCite options. Make sure all of the options on the resulting screen are turned on by checking the appropriate boxes as indicated below, then click on “Save.” 4) Return to your KeyCite results—you may need to recomplete the process described in question 1 to access the results—and see if you now have access to the headnote references. If not, please contact Creighton Miller or Robert Marshall in the library for assistance. 26