Legal Research

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Legal Research July 2012

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Legal Research

  1. 1. Legal Research: The Basics July 2012
  2. 2. Legal Research:The Basics You will typically follow a broad two-step process to research a legal issue. First, you need to find valid (i.e., not outdated or overruled) primary authority. Second, you need to analyze your valid authority to determine the degree to which the authority relates to your factual issue.
  3. 3. Legal Research:The Basics The first step requires reliance on several different means of finding primary authority. The process of legal research is a fluid, sometimes circular process.
  4. 4. Legal Research:The Basics During your research,  In connection with you will need to make your thorough review sure that you of different research exhaustively review sources, these sources each source discussed will suggest additional in the process research avenues that suggested below. you did not cover the first time you went through the process.
  5. 5. Legal Research:The Basics Of course, your review of the research sources does not substitute for a careful review of the primary authority itself. You should not rely solely on the descriptions of the authority contained in the research sources. For example, the case summaries contained in digests and annotated codes are by definition not complete or fully descriptive.
  6. 6. Legal Research:The Basics Thus, you cannot rely  You must review the on any source’s cases and statutes summary of the cases themselves to get a or statutes. thorough and accurate understanding of the legal principles relevant to your research topic.
  7. 7. Legal Research:The Basics The second step, analysis of the authority you identified in your research, is outside the scope of this session. However, your analysis of the primary authority you identified as potentially relevant will also require substantial effort. Your ultimate goal during research is finding on-point primary authority.
  8. 8. MAJOR STEPS TO TAKE IN FINDINGPRIMARY AUTHORITY Step 1: Research Secondary SourcesYou should almost always begin your research with a secondary source.You cannot do a good job of researching a narrow legal issue without understanding the broader legal context surrounding the issue you are researching.A secondary source will introduce you to overall concepts relating to your research issue and will help identify and clarify the issue that you need to learn about.
  9. 9. MAJOR STEPS TO TAKE INFINDING PRIMARY AUTHORITY A good secondary source also will synthesize rules and principles surrounding the legal issue(s) you are researching. Because it is very easy to overlook and/or misunderstand issues that are relevant to the legal issue you have been asked to address if you are not familiar with an area of law, a secondary source will help you avoid mistakes that will lead to an incorrect or insufficient answer to your problem.
  10. 10. MAJOR STEPS TO TAKE INFINDING PRIMARY AUTHORITY Step 2: Research Statutory Authority – Annotated CodesYou need to research the annotated codes for two important reasons.First, you need to determine whether a statute governs your research situation. If one does, you will need to review the statutory language carefully to determine what rules the statute provides that impact your research.Second, you need to review the annotated codes to find cases that apply the statute. Courts interpret statutes and apply the statutory language to parties’ specific disputes. Thus, you need to find cases interpreting the statute that are similar factually to the issue you are researching.
  11. 11. MAJOR STEPS TO TAKE INFINDING PRIMARY AUTHORITY Step 3: Research Case Authority in DigestsRegardless of whether you are researching a statutory or common law issue, you need to use digests to help you identify pertinent case authority.One of your goals as a legal researcher is to find cases that are as factually similar to your research situation as possible.Digests are an excellent means of identifying relevant case authority.
  12. 12. MAJOR STEPS TO TAKE INFINDING PRIMARY AUTHORITY STRENGTHS OF USING DIGESTSDigests are organized by discrete legal areas.Each legal area is given subheadings/topics regarding specific issues within the broad legal area.Once you identify a pertinent topic heading, you can find many cases that are relevant to your research issue in one discrete, easily reviewed, location.If you are researching a statutory issue, the digests may cite to additional relevant cases that were not identified in the annotated codes.
  13. 13. MAJOR STEPS TO TAKE INFINDING PRIMARY AUTHORITY Weaknesses of Using DigestsFrequently, there is not a topic heading that relates to the factual issue confronting you.Sometimes, digest headnotes are vague or lack factual specificity.Digests are not necessarily comprehensive.
  14. 14. MAJOR STEPS TO TAKE INFINDING PRIMARY AUTHORITY Step 4: Computer-Assisted ResearchRegardless of whether you are researching the digests and annotated codes in print or online, it is essential that you also use computer-assisted research to find primary authority that the digests and annotated codes do not identify. This is available through Westlaw, LexisNexis, and Bloomberg’s Law.
  15. 15. MAJOR STEPS TO TAKE INFINDING PRIMARY AUTHORITYAnnotated codes and digests frequently will not list all the pertinent authority that relate to your research because they are not completely comprehensive.Thus, it is important to perform one or more terms and connectors or natural language searches in a computer database to ensure that you have identified all of the pertinent primary authority that relates to your research issue.
  16. 16. MAJOR STEPS TO TAKE INFINDING PRIMARY AUTHORITY However, typically you  In order to construct an should not perform this effective search query, you step until after you need to have a precise understand your research understanding of the issue issue very well. you are addressing as well as a clear conception of the key terms that cases frequently use when deciding your legal issue.  It is almost always impossible to have this knowledge without having done some, if not all, of the steps listed above.
  17. 17. MAJOR STEPS TO TAKE INFINDING PRIMARY AUTHORITY Step 5: ShepardizingShepardizing serves two essential research functions:First, you must Shepardize® all cases and statutes to ensure that the cases and statutes you have found are still valid.Second, you can use Shepard’s® Citations Service to identify additional primary authority.
  18. 18. MAJOR STEPS TO TAKE INFINDING PRIMARY AUTHORITY Example 1 Frequently, Shepard’s willAssume you found some identify additional cases using the digests. pertinent authority.Of course, at some point in That additional authority may your research you would identify different, relevant Shepardize those cases to digest headnote numbers make sure that the cases than the ones you were still valid and also to previously reviewed. determine whether there In that instance, you will are additional cases that need to review the digests are factually similar to again using the new your research issue. headnote numbers identified in the cases you found using Shepard’s.
  19. 19. MAJOR STEPS TO TAKE INFINDING PRIMARY AUTHORITY Example 2Assume the secondary source you reviewed identified a statute that is relevant to your issue.In reviewing the annotations under the pertinent statutory section, you identify several cases potentially on point.When you review those cases, the cases may identify a different statute that creates an exception to the statutory rule identified by your secondary source.If this occurs, you will have to revisit the annotated codes to: (a) review the statute to see if the exception articulated applies to your research situation and (b) review any annotations in the new section to find additional relevant cases.
  20. 20. MAJOR STEPS TO TAKE INFINDING PRIMARY AUTHORITY Example 3Assume you are requested to research whether a police officer can sue a member of the public for negligence because the person created a hazardous situation where the officer was injured.You have been asked to research whether there is any affirmative defense potentially barring a police officer from suing a member of the public for injuries the officer suffered in the course of his employment.If you were researching affirmative defenses applying to police officers, your first level of research would be to look for cases specifically involving police officers.
  21. 21. MAJOR STEPS TO TAKE INFINDING PRIMARY AUTHORITYExample 3 – Con’tHowever, if you found no cases involving police officers, you would likely return to your research and expand your search to include affirmative defenses applicable to other public employees.Once you did so, you would find that many jurisdictions follow a rule commonly known as the “firefighters’ rule.”
  22. 22. MAJOR STEPS TO TAKE INFINDING PRIMARY AUTHORITY Example 3 – Con’tUnder the firefighters rule, a publicly employed firefighter may not sue a person who negligently started a fire.The policy underlying this rule is that the public has already paid for the firefighter’s services indirectly through the payment of taxes.
  23. 23. MAJOR STEPS TO TAKE INFINDING PRIMARY AUTHORITY Example 3 – Con’tIt would be unfair to require the public to pay damages to a firefighter when the public’s taxes already provide compensation to the firefighter for confronting the risk of being injured in a fire.After you identified cases applying the firefighters rule, you would use them to argue that the rationale underlying the firefighter’s rule applies to police officers because the police are also paid by taxpayer money to confront certain risks.
  24. 24. MAJOR STEPS TO TAKEIN FINDING PRIMARY AUTHORITY It is essential that you take detailed notes regarding yourresearch process. Among other things, your notes should memorialize:
  25. 25. MAJOR STEPS TO TAKE INFINDING PRIMARY AUTHORITY1. The sources you have reviewed.2. Other potential topics or headnotes that you still need to review within each of the sources.3. The searches you performed in each of the sources you reviewed. For example, when you perform digest or annotated code research, your notes should state the topic headings and headnote numbers that you reviewed. Similarly, when you do a terms and connectors or natural language search, you should write down the exact searches that you conducted.4. The cases and statutes you identified in each search.5. Whether you have ShepardizedTM the case(s) and statute(s) you have identified as potentially relevant.
  26. 26. MAJOR STEPS TO TAKE INFINDING PRIMARY AUTHORITY FLUID/CIRCULAR NATURE OF THE RESEARCH PROCESSResearch is not a linear process.You may need to return to one of the research sources that you previously reviewed in light of new issues identified by a later step in your research process
  27. 27. Review Start/ Research Continue/ Issue(s) & End Research Process Research Process Follow Steps 1-5 in. Research Process
  28. 28. Learning How to Research Those new to legal research begin with books and websites designed to teach legal research. These types of books help the new researcher learn how to think about their legal problem and define their issues using the correct legal terms. Legal research guides are useful for helping the beginning researcher decide what court, government agency, or jurisdiction has the power to hear and decide his or her legal problem. Is the legal problem presented one that federal, state, or local law governs (or perhaps a combination of any or all of those laws)? These resources also provide a good introduction to the types of sources available to the legal researcher.
  29. 29. Learning How to Research Many of the university libraries and county law libraries will have some of the print resources listed below to help the beginning researcher understand the research process. Other good online sources are also listed for those of you who live in an area where accessing a law library is difficult. Legal Research: How to Find & Understand the Law (11th ed. 2003, Nolo Press) How to Find the Law (1989, West) Locating the Law: A Handbook for Non-Law Librarians, With an Emphasis on California Law (4th ed. 2001, SCALL). Available in print and online at http://www.aallnet.org/chapter/scall/locating.htm How to Research a Legal Problem: A Guide for Non- Lawyers. Available online at http://www.aallnet.org/sis/lisp/research.htm
  30. 30. Finding Definitions for Legal "Language" As you begin your research, you may come across words that are unfamiliar and abbreviations that are strange. Libraries have materials available to help you with the terminology and abbreviations used in the law.
  31. 31. Finding Definitions for Legal "Language" Some print and online sources for you to consult when struggling with the words and abbreviations used in the law are listed below:  Blacks Law Dictionary (8th ed. 2004, West)  Law Dictionary for NonLawyers (1985, West)  Biebers Dictionary of Legal Abbreviations (5th ed. 2001, Hein)  Nolos Everybodys Legal Dictionary available online at http://www.nolo.com/lawcenter/dictionary/wordindex.cfm  FindLaws "Search the Legal Dictionary" available online at http://dictionary.lp.findlaw.com/  Peter Martins Basic Legal Citation available online at http://www.law.cornell.edu/citation/
  32. 32. Other Starting Points (Encyclopedias, Practice Guides, Loose-Leafs) Legal encyclopedias  Researchers use encyclopedias specific to law. They work just like the encyclopedias you may be familiar with in your public library, although they are located only in the larger law libraries in the state. If you are not successful in finding a self-help book on your particular problem, you may want to consult a legal encyclopedia for a broad overview of your topic and references to cases and statutes.  For coverage of law on a nationwide basis consult American Jurisprudence 2d or Corpus Juris Secundum. Georgia law is covered in an encyclopedia titled Encyclopedia of Georgia Law.
  33. 33. Other Starting Points (Encyclopedias, Practice Guides, Loose-Leafs) Practice Guides and loose-leafs are the books you will find in a library with a legal collection. These books detail the law, the forms, and the information needed to pursue a specific type of case through the courts. The information in these books is updated frequently and often they are referred to as loose-leafs as they are in binders designed to be updated frequently by the insertion of new material. Major publishers of such books are CEB, Rutter Group, West Group, CCH, and Lexis/Nexis.
  34. 34. Looking for Codes (Statutes) and Constitutions The terms codes, statutes, and legislation are often used to describe the same thing. Codes are the enactments of a governmental body, be it a legislature, congress, or city council. Codes are generally arranged by subject, and numbered with sections and/or titles. All are indexed and many are annotated. Annotated means that the codes contain not only the text of the law, but also brief summaries of judicial opinions that interpret the codes, legislative history and analysis, cross references, and more.
  35. 35. Looking for Codes (Statutes) and ConstitutionsFinding United States Code sections: In print United States Code Annotated (West) United States Code Service (Lexis) United States Code (official, government publication) Online United States House site at http://uscode.house.gov/usc.htm Cornells Legal Information Institute at http://www4.law.cornell.edu/uscode/ GPO Access at http://www.gpoaccess.gov/uscode/index.html
  36. 36. Looking for Codes (Statutes) and Constitutions Finding Georgia Codes: In print Official Code of Georgia Annotated (Lexis) Online Georgia Code online at http://www.legis.state.ga.us/htdig/search. htm
  37. 37. Finding Administrative (Regulatory) Law The legislative  These same branch of agencies also have government the power to hear delegates powers disputes and to government enforce their rules agencies to enact and regulations. laws and regulations known as administrative or regulatory law.
  38. 38. Finding Administrative (Regulatory) Law Think of agencies such as the Social Security Administration or the state Department of Motor Vehicles. Many of the laws that come out of these agencies are not found in the codes listed above. Instead they are published in the form of codes of regulations or administrative codes.
  39. 39. Finding Administrative (Regulatory) Law These administrative codes are indexed by subject and organized by either subject or title number and then section. Examples are provided below. Finding Georgias state administrative code: In print Official Compilation of the Rules and Regulations of the State of Georgia (Secretary of State)
  40. 40. Finding Administrative (Regulatory) Law The online version is essentially identical to the print version. It may be searched by agency, table of contents, keyword search, or by section number and title. http://sos.georgia.gov/rules_regs.htm
  41. 41. Finding Administrative (Regulatory) Law Finding Federal administrative law: In print Code of Federal Regulations Federal Register Various print reporters of administrative opinions Online Code of Federal Regulations at http://www.gpoaccess.gov/cfr/index.html Federal Register at http://www.gpoaccess.gov/fr/index.html Links to Federal Agency opinions at http://www.lib.virginia.edu/govdocs/fed_decision s_agency.html
  42. 42. Finding Administrative (Regulatory) Law The Federal Register is a daily publication of regulations and rules made by federal agencies. The Code of Federal Regulations codifies what is first published in the daily register. The code is in 50 titles with section numbers and it is updated quarterly.
  43. 43. Finding Cases Where do you find case law? If you are looking for print cases, you will likely find them only in libraries with legal materials. Cases are located by using a number of tools. If you know the name of the case you can locate a table of cases that will list the cases alphabetically and give you the volume, page and book where the case is located. If you have the citation you can simply find the correct set of books, pull the volume and turn to the page. If you are looking for cases by topic you will want to use a tool known as a digest.
  44. 44. Finding Cases Digests are indexes to case law and also a way to find cases by topic, name, or subject. They are organized alphabetically by subject with numbers that classify the law into topics and subtopics. Digests are published by commercial publishers who analyze cases and write brief abstracts of cases and points of law. In Print Wests Georgia Digest 2d Wests Federal Practice Digest
  45. 45. Finding CasesMany online services (both pay databases and the free internet) act as digests of case law.Some are mentioned below as finding tools for cases.Finding Georgia case law:In Print  Georgia Reports  Georgia Appeals Reports  Wests South Eastern Reporter: Georgia Cases  West’s South Eastern Reporter
  46. 46. Finding CasesOnline  Georgia cases from (LexisNexis) available at http://www.courtinfo.ca.gov/opinions/  FindLaw also contains Georgia cases from at: http://www.findlaw.com/gacases/index.html
  47. 47. Finding Cases Finding Federal Case law: In Print United States Reports (United States Supreme Court) Supreme Court Reporter (United States Supreme Court) Lawyers Edition: United States Supreme Court Reports (United States Supreme Court) Federal Reporter (1st-3d) (Federal Circuit Courts of Appeal) Federal Supplement (1st-2d) (Federal District Court opinions)
  48. 48. Finding CasesFinding Federal CasesOnline United Supreme Court opinions use FindLaw (back to 1893), Cornells Legal Information Institute, or the Official Supreme Court website. Findlaw is at http://www.findlaw.com/casecode/supreme.html Cornells site is at http://supct.law.cornell.edu/supct/ Official Supreme Court site is at http://www.supremecourtus.gov/opinions/opinions. html Federal court opinions (circuit courts of appeal and trial level district courts). http://www.law.cornell.edu/federal/opinions.html http://www.findlaw.com/casecode/
  49. 49. Legal ResearchAfter completing your review of all of the above-mentioned steps, you should have an idea of the statutes and cases that relate to your legal problem.
  50. 50. The Importance of Updating Your Research When doing legal research you can never overlook the fact that the law changes rapidly and often. You may find a perfect case and find that it was later overruled. The statute you are relying on may have been amended or repealed. You must always find a way to update your research before you represent to any court that the law you are relying on is still "good" law.
  51. 51. The Importance of Updating Your Research The main way of updating codes, cases, and regulations is through use of an online service such as Wests KeyCite or Lexis/Nexis Shepards Citations. Print versions of Shepards are available at many libraries with legal collections. These types of legal research resources help the researcher find out prior and subsequent history of cases and statutes.
  52. 52. When to Stop Your Research No one can really tell you when you reach the comfort level you need to stop your research. Many sources suggest that when you read the same legal rule over and over again you have found your answer. Also, if you are unsure of where your research has led you, you may always consult with an attorney that is experienced in the legal topic you are researching.

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