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Ch 7.pptx
- 1. CHAPTER 7 Legal Research and Analysis 7-1
- 2. Introduction • For many paralegals, legal research is a central and fascinating part of their jobs • The ability to conduct research thoroughly yet efficiently enhances a paralegal’s value • As a paralegal, you may be asked to perform a variety of research tasks • Many paralegals conduct research without entering a law library • It is essential to know what sources to consult 7-2
- 3. Researching Case Law— The Preliminary Steps • Defining the Issue – Background research – Focus on the legal issues – Checklist for defining research issues • Parties • Places and things • Basis of action or issue • Defenses • Relief sought 7-3
- 4. Researching Case Law— The Preliminary Steps • Determining Your Research Goals – Cases on point • Previous case with similar fact patterns and legal issues • Case on “all fours”: all four elements are similar – Binding authorities • Court must follow this in deciding an issue • Be on point • Source of precedent 7-4
- 5. Researching Case Law— The Preliminary Steps • Determining Your Research Goals – Published and unpublished opinions • Unpublished opinions can sometimes be cited • Look for statements by the court – Persuasive authorities 7-5
- 6. Finding Relevant Cases • Two Basic Categories of Legal Sources – Primary sources of law – Secondary sources of law • Use Secondary Sources to Find Primary Sources – Secondary sources are called finding tools 7-6
- 7. Finding Relevant Cases • Legal Encyclopedias – Major legal encyclopedias • American Jurisprudence (Am. Jur. 2d) • Corpus Juris Secundum (C.J.S.) • Cross-references • Pocket parts • Other Sources – Words and Phrases – Reporters 7-7
- 8. Finding Relevant Cases • Case Digests – Provide indexes to case law – Annotations included in case digests – The West key-number system • Using key numbers • Finding what you need – Types of digests • Supreme Court Digest 7-8
- 9. Finding Relevant Cases • Annotations: American Law Reports – American Law Reports (A.L.R.) – American Law Reports Federal (A.L.R. Federal) – Full text of selected cases – Six different series cover case law since 1919 7-9
- 10. Finding Relevant Cases • Annotations: American Law Reports (continued) – Quick Index – A.L.R. Blue Book of Supplemental Decisions – A.L.R. Later Case Service – Most are available online 7-10
- 11. Finding Relevant Cases • Other Secondary Sources – Treatises • Treatises • Hornbooks – Restatements of the Law • Statements of principles of law, followed by discussions – Legal Periodicals 7-11
- 12. The Case Reporting System • Tips for Effective Legal Research – Know the exact legal issue you will be researching – Understand the language of the issue – Be aware of the circular nature of legal research – Always assume there are additional materials to find – Keep a list of what sources you have found and where they have led you 7-12
- 13. The Case Reporting System • Tips for Effective Legal Research – Become familiar with the sources you are using – Be aware of the jurisdiction and the time frame you are researching – Always refer to Shepard’s to make sure the cases you are using are up to date – Use computerized legal research services to update your research results 7-13
- 14. The Case Reporting System • State Court Decisions and Reporters – Written decisions are published chronologically – Regional reporters – Citation format • Five parts to a standard citation • Parallel citation • Proper form – The Bluebook – ALWD Citation Manual 7-14
- 15. The Case Reporting System • Federal Court Decisions – U.S. district court decisions • Published in West’s Federal Supplement – Opinions from the court of appeals • Reported in West’s Federal Reporter – Both are unofficial reporters – Bankruptcy Reporter – All published online 7-15
- 16. The Case Reporting System • United States Supreme Court Decisions – The United States Reports • Slip opinion, official version – The Supreme Court Reporter • Syllabus, headnotes, case report – The Lawyers’ Edition of the Supreme Court Reports • Unofficial edition of entire series of Supreme Court reports 7-16
- 17. Analyzing Case Law • The Components of a Case – Case title – Case citation – Docket number – Dates argued and decided – Syllabus – Cont. 7-17
- 18. Analyzing Case Law • The Components of a Case – Headnotes – Names of counsel – Name of judge or justice authoring the opinion – Opinion – The court’s conclusion 7-18
- 20. Analyzing Case Law • Analyzing cases – Main focus should be on the opinion – Look for guideposts in the opinion • Sections and subsections • Identify components • Understand the facts and procedural history – Distinguish the court’s holding from dicta 7-20
- 21. Analyzing Case Law • Summarizing and Briefing Cases – Citation – Facts – Procedure – Issue – Decision – Reasoning – Holding 7-21
- 22. Analyzing Case Law • IRAC: A Method for Briefing Cases – A standard format for briefing cases • Issue • Rule • Application • Conclusion – Different lawyers and different offices have different preferences 7-22
- 23. Researching Constitutional and Statutory Law • Finding Constitutional Law – State constitutions available online – Federal constitutional law • The Constitution of the United States of America • United States Code Annotated • United States Code Service • Finding Statutory Law – Statutes supplement or replace the common law 7-23
- 24. Researching Constitutional and Statutory Law • Finding Statutory Law (continued) – Published in compilations referred to as codes – Federal statutes • Contained in the United States Code (U.S.C.) • Names of statutes • Unofficial versions of U.S. code – West’s United States Code Annotated (U.S.C.A.) – West’s United States Code Service (U.S.D.S.) – State statutes 7-24
- 25. Analyzing Statutory Law • Two Steps in Statutory Analysis – Read the language of the statute • Reasons for its enactment • Date on which it became effective • Class of parties to which it applies • Conduct regulated by the statute • Circumstances in which conduct is prohibited, required, or permitted – Interpret the meaning 7-25
- 26. Analyzing Statutory Law • Reading Statutory Law – The plain meaning rule – Read a statute as a whole – Statutory definitions govern – Distinguish between “and” and “or” – “Shall” does not mean “may” – “May” does not mean “shall” 7-26
- 27. Analyzing Statutory Law • Previous Judicial Interpretation – Courts are obligated to follow precedents • Higher court • Same jurisdiction – Statutory interpretation binds lower courts – Annotated versions • State or federal statutory codes such as the U.S.C.A. • Available in print and online 7-27
- 28. Analyzing Statutory Law • Legislative Intent – Learning the intent of the legislature – Committee reports • Most important source of legislative history • Published and accessible online – Other sources of legislative history • United States Code Congressional and Administrative News (U.S.C.C.A.N.) • The www.congress.gov website 7-28
- 29. Researching Administrative Law • Administrative rules and regulations constitute a growing source of American law • Congress frequently delegates authority to administrative agencies through enabling legislation • Orders, regulations, and decisions of these agencies • Legally binding • Primary sources of law • Published in Code of Federal Regulations (C.F.R.) 7-29
- 30. Summary • The first step in research is to identify the legal question, or issue, to be researched • In researching case law, the goal is to find cases that are on point and are binding authorities • Primary sources of law include all documents that establish the law • Secondary sources of law are publications written about the law 7-30
- 31. Summary • The primary sources of case law are the cases themselves • Statutory and constitutional law are primary sources of law • Statutory law is often difficult to understand, so careful reading and rereading are often required to understand the meaning • Regulations issued by federal administrative agencies are primary sources of law 7-31
Editor's Notes
- Learning Objective: How primary and secondary sources of law differ and how to use each of these types of sources in the research process.
- Learning Objective: How court decisions are published and how to read case citations.
- Learning Objective: How to analyze case law and summarize, or brief, cases.
- Learning Objective: How federal statutes and regulations are published, and the major sources of statutory and administrative law.
- Learning Objective: How to interpret statutory law and understand what kinds of resources are available for researching the legislative history of a statute.