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- 3. Betty Baker works at Begonia Bakery in Greenwich Village, which sells famously delicious cupcakes and other tasty treats. Betty recently decided she wants to start her own bakery – ideally she would like to locate her bakery in New York City. Unfortunately, when Betty’s boss, Bill Begonia, reminded her she had signed a contract stating that if Betty left Begonia Bakery, she would not sell baked goods in New York City, Westchester County, or Long Island for a period of three years. Betty was born and raised in Flatbush and is very upset that the Begonia Bakery contract prevents her from working in the greater New York City area. She seeks your advice as to whether or not this contract is enforceable.
- 4. The Legal Research Process Interview client (Betty) & review documents (contract) to identify facts & issues. Use secondary sources to find overviews of law, legal terms, & primary law. Review primary law. Search databases to find additional primary law. Before reporting findings, update primary law = cases, statutes, regulations, & decisions of agencies = legal dictionaries, encyclopedias, treatises (books), and law review articles Updating tools: W: KeyCite L: Shepard’s
- 8. Practice Tip: Ask questions and clarify issues in the beginning – you’ll save yourself time and your client (Betty) money. Insist if you must!
- 9. Let’s try brainstorming for the Betty Baker case: What are some Key Terms that you think might help us search for the law governing Betty’s contract with Begonia?
- 14. Practice Tip: Start Here (or similar).
- 20. Just make sure you always read a secondary resource as the first step of any new legal research project – you never want to reinvent the wheel. Otherwise, you will waste your time and your client’s money!
- 39. TIP: Rule 10.3 lists the preferred reporters to cite. Table T1 (page 233 of the Bluebook) also helps by listing reporters in order of preference for citation – you should generally follow the Table T1 order of preference for law school assignments.
- 40. Pink Box: Volume # Turquoise Box: Case reporter abbreviation Orange Box: 1st page of case
- 41. Delgado v. All-Safe, Inc., 967 N.Y.S.2d 913 (N.Y. App. Div. 2014). Bluebook Table T1 – New York – Pages 279 – 283 .
- 51. Topics and key numbers are included in the headnotes of court opinions on WestlawNext. Each point of law in an opinion is given its own headnote and assigned a topic and key number by an attorney-editor for West. In this headnote, Constitutional Law is the Topic and True Threats is the Key Number.
- 52. Why Can’t I Just Do a Keyword Search? When you do a keyword search, you might miss cases that do not describe the issue using your search terms, and you will probably retrieve some cases that include your search terms but do not discuss the issue that interests you.
- 54. In response to the West Digest system, Lexis created its own system of Topics and sub-topics, and also has headnotes attached to each topic assigned to the legal issues within a case. One of the often-discussed differences between the two systems is that Westlaw’s topic classification is all done manually, with trained editors literally reading and assigning Key Numbers to each case, while Lexis does most of this process using an algorithm. The headnotes come from the court’s language, rather than being written by an editor. Another difference is that, unlike Westlaw, Lexis does not assign numbers to its topics and subtopics. The West digest system offers vastly greater specificity – about 100,000 sub-topics (keys) compared to about 16,000 on Lexis. You won’t return any results if you put in a highly specific topic (e.g. “true threats”) you must use general topics (e.g. “freedom of speech”).
- 55. There may be a number of topics assigned to an individual Headnote, and each can be used to run a search in a manner very similar to WestlawNext. From this Supreme Court case, let’s select this particular topic – Mens Rea – Lexis gives us the option to “Get Documents.” This will retrieve all the cases with a headnote assigned to that topic. We have retrieved over 10,000 cases with a headnote assigned to the Mens Rea topic. You can limit your results by jurisdiction or court. You can also narrow your results by searching for keywords within the results.
- 64. Even if a case has not been overruled, you may still not want to cite it if it has been criticized or if it has been distinguished so often that it is limited purely to its facts.
- 65. Negative Direct History – negative event in the history of your case (e.g. appellate court overrules your case). Negative Citing References – negative event in another litigation affects your case (e.g. another court says the legal analysis in your case in flawed).
- 66. Click on Citing References to see all of the subsequent cases that have cited to Black. We are all familiar with the importance of citators in ensuring legal arguments are valid – meaning, they do not rely on cases that have been criticized or overruled. However, online citators also serve other important functions. They allow us to expand our research from a single good case to find additional cases, secondary sources, administrative materials, and court documents – if one case is relevant to your research, other sources that cite to it may be equally, or perhaps even more, relevant. Additionally, the quality and quantity of courts that cite a particular case might give you some indication of its importance.
- 67. Let’s try Shepardizing the Liberty University v. Geithner, one of the cases overturned by the Supreme Court in the Obamacare individual mandate litigation. To Shepardize a case on Lexis Advance you can either type shep: and the case cite in the Lexis Advance home page search bar. Or, if you are already viewing a case, you can view summary citation information right on the first page of the case. If you want a detailed Shepard’s report – click on click on the “Shepardize this document” link. This case has subsequent negative appellate history. Scroll down to see all of the subsequent appellate history, including the Supreme Court overturning the case in 2012.
- 79. What’s the Answer? Begin Your Research with a Current & Reliable Secondary Source!
- 80. You can Shepardize or KeyCite code sections just like cases – and you should! If you are using print, ALWAYS check the pocket part!
- 105. So, what will you tell Betty?
- 106. Loreen Peritz Reference Librarian & Adjunct Professor of Law Come See Me at the Reference Desk: Monday, Wednesday, Friday – 3:00-5:00 Thursday – 5:00-8:00 Or call or email me for an appointment: 780-7538; loreen.peritz@brooklaw.edu Want to see this presentation again? Download from:
Editor's Notes
- A basic understanding of the U.S. legal system is essential to understanding where to find the law. First, as you all know, the Federal government is divided into three branches – and, as it happens, each branch creates law that we must be concerned with. The legislative branch – or Congress – creates statutes. The judicial branch (including the highest court in the land – the Supreme Court) issues case decisions – and this body of decisions is called case law. The executive branch – and the various executive branch agencies and departments create regulations and other administrative determinations and adjudications and this body of law is called administrative law. As lawyers – whenever we try to help a client solve a legal issue - we must be thoroughly familiar with each of these three sources of law. It is important to note, that sometimes these different kinds of law will overlap – sometimes they even contradict each other – and it is our job to work our way through this thicket in order to advise our clients how to proceed. To make matters even more complicated, in the U.S., there are two parallel systems of law – federal law and state law. State law making is usually also comprised of statutes, case law and administrative law. Again these sources of law can overlap and contradict each other and may also overlap and contradict federal law.
- 4. MAKE SURE YOU THOROUGHLY UNDERSTAND THE BASIC FACTS BEFORE YOU START EVEN PRELIMINARY RESEARCH. This may seem obvious but you have to be sure you understand the basic facts surrounding your legal issue before you start your research.
- You should take the time to develop a research plan before you ever open a book or look in an electronic database. For the Betty Baker case, ask yourself: 1. What is the governing law? Of the 3 branches, who is likely to have established law of this issue? Remember, it is likely that the legislature, the courts and the executive branch may all have touched on your topic. EXAMPLES: insurance law? Securities law? Hospital law? 2. What is the jurisdiction – for example: if statute – U.S. Code or New York Statutes? 3. If you are filing a civil claim – has the statute of limitations run? Statute limiting time period for filing this claim in your jurisdiction.
- 5. You need to define the scope of your project – are you writing an appellate brief or a memo to a partner? How much time should you devote to the project?
- Here are 3 ways to come up with search terms: 1) Use a dictionary such as Blacks law dictionary or a legal thesaurus. 2) Ask the person giving you the assignment, or other more senior attorneys, for suggestions. 3) Brainstorm by jotting down as many synonyms and related words as you can come up with because different legal research resources use different terms. For example, an issue relating to a child might be found under: children, minors, infants, or parent & child. The important thing is to spend some time thinking and getting organized before you dive into your research – you’ll be more productive and save time and money in the end if you take a little time in the beginning to come up with a research plan.
- Use a secondary resource to look smart when you present your research results.
- Legal encyclopedias contain brief, broad summaries of legal topics, providing introductions to legal topics and explaining relevant terms of art. They also provide citations to relevant primary law and sometimes give citations to relevant major law review articles. Encyclopedias are available in print and online and fall into three main categories: nationally focused, which cover broad topical areas of the law, state –specific, which focus on the law in a single jurisdiction, and subject specialized which provide coverage of an area of law such as corporations, family law, or tax. There are two main legal encyclopedias in the United States that are national in scope (AM Jur and CJS). They are useful, but not well-suited for jurisdiction specific research. State legal encyclopedias will describe a particular topic, usually give a brief history of the development of the law in that state, and provide a discussion of leading cases and/or relevant statutes. State encyclopedias are also generally available on Lexis and/or Westlaw. Not every state has a legal encyclopedia but bigger states like NY and California do. Depth of coverage and quality varies. Electronic versions of the encyclopedias are updated directly. If using a print encyclopedia, always remember to check the pocket parts for any updates. When you use an encyclopedia, you will get a much briefer and less detailed discussion of a topic than you would if you had used a treatise or law review article. That being said, and this is a practice tip – I always advise “starting simple” when you are learning a new area of the law. Legal encyclopedias are a good example of starting simple – articles are relatively brief, easy to understand, and provide you with enough citations to the primary law to get you started. You can always circle back around and use a more comprehensive resource, such as a treatise, once you have a basic understanding of the law you are researching.
- The American Law Reports, also known as ALR, might look a lot like AmJur or the CJS at first blush. However, ALR is distinguished from these two sources by its extensive annotations. The term “annotation” as used in the ALR is a bit misleading since ALR annotations are, in fact, lengthy articles that treat a narrow topic in great detail. ALR annotations combine all the best features of a case report, a law review article, and a legal encyclopedia article. Each topic specific annotation provides an in-depth analysis of a specific legal issue and provides a complete list of every case – in every jurisdiction – that discusses that issue. As background, a numbered series of American Law Reports began publication in 1919. ALR is now on its sixth series, known as ALR 6th. There are also two federal series which began publication in 1969 and are known as ALR Fed and ALR Fed 2d. Prior to 1969, federal issues were treated as part of the main series. ALR annotations are not jurisdiction specific – so if you are researching a New York law issue, this may not be the best place to turn. That being said, each annotation does have a table of jurisdictions to help you find relevant cases on the topic in specific states. ALR is available both in print and on both Westlaw and Lexis.
- Treatises, not to be confused with treaties, are book-length expositions on the law as it pertains to a particular subject. Treatises may be scholarly in nature, such as Blackstone’s Commentaries on the Law, or they may be geared toward a legal practitioner, such as a manual or handbook. A legal treatise may be a short, single volume or a large, multivolume set. Many are available electronically as well as in print.
- Different kinds of treatises have different purposes: Here are three most common type of treatises that you are likely to use – I will talk about them in order – going from the type of treatise with most general treatment of an area of law to the most detailed and, unfortunately, also the most complicated. Nutshells – you’ve all probably used these already - provide an overview of a legal topic without the detailed analysis or extensive case referencing found in other treatises. Nutshells are a great place to turn if you don’t have a lot of time and you just need some general background on an area of the law. Legal hornbooks are designed as teaching tools for law students. Hornbooks provide more detailed treatments of a particular area of the law than nutshells. They also generally contain summaries of landmark cases and other useful details. Some treatises are designed to serve as practitioners’ tools. These works tend to address realistic legal problems and often provide useful features for practicing lawyers, such as forms and tables. Looseleaf services are an example of treatises designed to serve as tools for practitioners. Looseleafs often cover such regulation intensive subjects such as banking, tax, Medicare, or securities law. Here we see a looseleaf treatise – that to be honest always scared me when I had to use it as a corporate lawyer. This is the 73,000 page 25 volume CCH standard federal tax reporter. Works such as this address realistic legal problems and often provide useful features for practicing lawyers, such as forms and tables. The advantage of this kind of a treatise is that it allows you to move seamlessly from the primary material (here tax law, tax regulations, and IRS interpretations) to analytical resources that help you interpret and apply the law. So, if you are trying to interpret a particular section of the internal revenue code for your client, this would be a great resource to use. It is detailed, authoritative and organized by internal revenue code section. This means you get the text of the code section followed by all relevant regulations, IRS interpretations, and commentary explaining primary law. So, even if this treatise always scared me a bit when I had to use it – I’m sure it would have been my best friend if I were a tax lawyer.
- Restatements are highly regarded distillations of common law. They are prepared by the American Law Institute (ALI), a prestigious organization comprising judges, professors, and lawyers. The ALI's aim is to distill the "black letter law" from cases to indicate trends in common law, and occasionally to recommend what a rule of law should be. In essence, they restate existing common law into a series of principles or rules. Restatements cover broad topics, such as Contracts or Property. They are organized into chapters, titles, and sections. Sections contain a concisely stated rule of law, comments to clarify the rule, hypothetical examples, explanation of purpose, as well as exceptions to the rule. Restatements are not primary law. Due to the prestige of the ALI and its painstaking drafting process, however, they are frequently cited by attorneys and are considered persuasive authority by many courts. The most heavily cited Restatements are the Restatement of Torts and the Restatement of Contracts.
- Law review or journal articles are another great secondary source for legal research, valuable for the depth in which they analyze and critique legal topics, as well as their extensive references to other sources, including primary sources. Law reviews are scholarly publications, usually edited by law students in conjunction with faculty members. They contain both lengthy articles and shorter essays by professors and lawyers, as well as comments, notes, or developments in the law written by students. Law review articles often focus on new or emerging areas of law and they can offer more critical commentary than a legal encyclopedia or ALR entry. Some law reviews are dedicated to a particular topic, such as gender and the law or environmental law, and will include in their contents the proceedings of a wide range of panels and symposia on timely legal issues.
- Just start typing and Westlaw will suggest sources – here I type American Law and Westlaw suggests American Law Reports. Back on the homepage – you can also browse for a source by clicking on secondary sources. Here you see secondary sources by type – I can select ALR. If I wanted to look at, for example, the Restatement on Contracts – I could click here. If I wanted to look at a legal encyclopedia I would click on Texts & Treatises. Here are AM Jur and CJS. Finally, instead of browsing secondary sources by type, I can browse by jurisdiction. Here I am selecting New York – and here you see all the NY secondary sources, including NYJur.
- Found: § 8.06 – Enforcement of Restrictive Covenants in Employment Agreements. A restrictive covenant is enforceable only if it is reasonably tailored in scope, geography, and time to further a protectable interest of the employer (trade secret, customers, employee unique, employee sold business to employer).
- Found 52 NY Jur Employment Relations §240 – Determining whether restrictive covenant will be enforced N.Y. courts do not like restrictive covenants. Article says restrictive covenants will be rigorously examined and enforced only to protect employer’s valid business interests. To determine enforceability, courts consider whether the covenant is reasonable in time and area, whether it is necessary to protect the employer’s legitimate interests, and whether the covenant is harmful to the general public or overly burdensome to the employee.
- If the court doesn’t want to follow a case: it will differentiate on facts or on law. Alternatively, appellate court can overturn lower court case or its own earlier case. Stare Decisis is based on the concept of fairness: a belief that decisions should be consistent - so the legal consequence of conduct can be predicted. Precedent explains why attorneys must search for and be familiar with all prior relevant cases in their jurisdiction when preparing for court – then they can chose to apply or differentiate the case – but they must be aware.
- Case law is published in bound volumes known as reporters. Print reporters publish cases in chronological order. Unlike most other printed legal material, there are no pocket parts or updates to cases. Later opinions which alter the authority of a decision will be published in a later volume.
- The official version of federal or state reporters are authorized by statute.
- N.Y.S. & Cal. Rptr. contain intermediate appellate court decisions as well as opinions of the state courts of last resort. Pacific and Northeastern Reporters report only decisions from the courts of last resort.
- When you are looking for relevant case law, the best situation would be to find cases that are “on point” with your case – meaning that both the facts and the legal issues are similar. A case like this is sometimes also referred to as being “on all fours” with your case. Of course this does not happen often.
- Constitutional Law is the Topic - 1831 True Threats is the key number. Again, in West’s American Digest system: lawyer-editor summarizes each legal issue in a published case and each of these summaries becomes a headnote. lawyer-editor also assigns a topic + a key # (like tags) to each headnote.
- Click on the case name – and Westlaw retrieves the case. Read case synopsis. Does the case seem relevant? Yes – keep reading. No, move on to next case. Then: read the Headnotes. Does the case still seem relevant? Yes – keep reading. No, move on to next case. Click on a headnote number to jump to the portion of the case discussing the legal issue summarized in that headnote. NEVER QUOTE A SYNOPSIS OR HEADNOTE – they were written by attorney editors – not judges – and are not part of the court opinion.
- Another thing to know about retrieving cases on Westlaw. Westlaw’s default is to sort cases is by relevance. You may want to change this – if you are interested in higher court opinions, for example, you can choose “Most Cited.” You can also sort the cases by date. Also, make use of the filters on the left. From your results list you can narrow to a particular court, a particular date, a judge, an attorney, a key number, and more.
- Best key is Contracts – Restraint of Trade (In General) or 95k116 Brown v. Brown is a Court of Appeals case; like most decisions from courts of last resort, it has no negative direct history.
- Yes, it is still good law. The Shepard’s report says there is no subsequent appellate history. As of 9/24/15, 289 cases have cited to BDO Seidman; 113 were positive. Brown cites to BDO Seidman for headnotes 1, 3, 4, and 5.
- All Federal statutes are published in three basic stages – and this applies to statutes both in their print and in their electronic form. The first version of a newly enacted statute is the slip law, which is issued by itself as a single sheet or as a pamphlet. Next are session laws which are the slip laws arranged by date of passage and published in separate volumes for each legislative term. Finally, the third form of statutory publication is the statutory compilation or code. Codes collect the statutes currently in force and arrange them by subject. Now we’ll spend a few minutes talking a bit more about each form of statute, how they differ, and when and why you might use one form over the other.
- Slide
- If you know the citation – use the find template in Westlaw If you know the key terms, use the index (print and Westlaw) If you know the subject of the code, drill down using the table of contents (print and Westlaw) If you know an act’s name, use the Popular Name Table (print and Westlaw)
- Notes of Decision – case law interpreting the statute. History – graphical statute – bird’s eye view of the life of the statute. Versions – prior versions of the statute (good for historical research). Validity – is the statute good law? Has new legislation in this area been proposed? Editor’s and Revisor’s Notes – information regarding dates of enactment, etc. Legislative History Materials – legislative materials such as hearing transcripts and committee reports relating to the statute. Context & Analysis – Westlaw editors provide a list of highly relevant secondary materials, other statutes, and cases to help you find additional authority.
- Notes of Decision – case law interpreting the statute. History – graphical statute – bird’s eye view of the life of the statute. Versions – prior versions of the statute (good for historical research). Validity – is the statute good law? Has new legislation in this area been proposed? Editor’s and Revisor’s Notes – information regarding dates of enactment, etc. Legislative History Materials – legislative materials such as hearing transcripts and committee reports relating to the statute. Context & Analysis – Westlaw editors provide a list of highly relevant secondary materials, other statutes, and cases to help you find additional authority.
- Yes, the statute is still good law. I know because I clicked on History and then Validity and there is nothing presented questioning the validity of the statute. Yes, there are 3 bills pending according to Westlaw.
- Yes, the statute is still good law. I know because the Shepard’s report does not indicate that the statute has been amended or repealed and because there is no case law questioning the statute’s validity. Yes, there is pending legislation – 2 bills pending before the New York State legislature.