From Facts to Issue


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From Facts to Issue

  1. 1. From Facts to Issue
  2. 2. <ul><li>The Facts </li></ul><ul><li>Ronnie, a salaried driver for the Acme Corporation, was unloading goods at a customer’s loading dock. Ronnie and the customer began to argue about whose duty it was to move the goods into the store. Ronnie shoved the customer. The customer fell and was injured. The customer is suing Acme for compensation for his injuries. Acme employs you to represent the corporation in the upcoming negotiations or litigation. </li></ul><ul><li>The case is filed within the jurisdiction of the state courts of Louisiana. </li></ul>
  3. 3. <ul><li>These facts must be translated into a legal issue(s). </li></ul><ul><li>This is one of the hardest part of legal research for the beginning researcher. Legal resources are seldom organized by facts; they are organized by legal theory. </li></ul><ul><li>You will need to identify terms of art that might apply to this situation. </li></ul><ul><li>You will need to learn the “black letter” law – statements of principles that govern the particular area of the law. Black letter law will give shape and limits to your research. </li></ul>
  4. 4. <ul><li>The parameters of your research may later have to be broadened, tightened, or shifted, but it is reassuring to start out with a map of the area you will be exploring. </li></ul><ul><li>Your thinking about the legal issues presented by a particular set of facts is likely to change as you learn more about an area of the law. Remain flexible. </li></ul><ul><li>Once you are familiar with the relevant terms of art and black letter law, you should be able to articulate your issue more precisely. </li></ul>
  5. 5. Research: In Print or Online? <ul><li>There is no right or wrong way to begin your research. </li></ul><ul><li>In the past, researchers had no choice but to conduct legal research in print resources. The last few years have witnessed the introduction and tremendous growth of a powerful alternative, online legal research. </li></ul><ul><li>Neither is the “better” method. One might work better than the other in this situation. You won’t know until you get started. </li></ul><ul><li>In all likelihood, you will move back and forth between print and online resources during the research process. </li></ul>
  6. 6. <ul><li>When confronted with an unfamiliar area of the law, many researchers find it easier to use print resources (such as legal encyclopedias, restatements, and practice guides) to get an overview, set parameters, learn the terms of art and black-letter law. </li></ul><ul><li>Book materials have a satisfying way of organizing and limiting research. They naturally set boundaries within the law that the seemingly endless and seamless materials of online legal materials cannot provide. </li></ul><ul><li>Book materials can impart a sense of orientation, the feeling that you have found what you need to get started. </li></ul>
  7. 7. <ul><li>One exception to the generalization that print resources are often the best place to start research is when the case is dependent on a particular detail. </li></ul><ul><ul><li>If the case rests on the fact that the vehicle involved was a farm tractor, standard print indexes and table of contents will not be organized around farm tractor cases. A full text online search for farm tractors and injuries may retrieve cases that can be the starting point for research. </li></ul></ul>
  8. 8. <ul><li>You might start with a well respected secondary source, such as: </li></ul><ul><ul><li>a treatise </li></ul></ul><ul><ul><li>West’s Nutshell Series </li></ul></ul><ul><ul><li>West’s Black Letter Series </li></ul></ul><ul><ul><li>American Law Reports (ALR) </li></ul></ul><ul><ul><li>a legal encyclopedia, such as American Jurisprudence (AMJUR) or Corpus Juris Secundum (CJS) </li></ul></ul><ul><li>Law school casebooks, with their emphasis on related but seemingly contradictory cases are designed for instructional purposes. They are not efficient research tools. </li></ul><ul><li>Published study outlines often do not contain the clear analysis of contradictory outcomes needed for a full understanding of the issue. </li></ul>Starting Research in Print Secondary Sources
  9. 9. <ul><li>All of the print products listed on the previous screen are secondary sources. </li></ul><ul><li>Secondary sources </li></ul><ul><ul><li>are written by legal experts. </li></ul></ul><ul><ul><li>lay out general principles of law along with exceptions and variations to that law. </li></ul></ul><ul><ul><li>are a source of citations to primary law (cases, statutes, and regulations). </li></ul></ul><ul><ul><li>may be cited to support a legal theory, especially in an emerging or rapidly changing area of the law where there is no primary law available. </li></ul></ul>
  10. 10. <ul><li>Once you have found a secondary source or two that you trust, check the index and table of contents. </li></ul><ul><ul><li>Many indexes are designed with entry words that allow a researcher unfamiliar with an area of the law to find the appropriate sections. </li></ul></ul><ul><ul><li>The hierarchy of the materials listed in the table of contents will help you move from general to specific issues. </li></ul></ul><ul><li>What you are looking for: </li></ul><ul><ul><li>Terms of art that apply to the facts </li></ul></ul><ul><ul><li>A statement of the generally accepted principles of law, often called “ black letter ” law </li></ul></ul><ul><ul><li>Enough understanding of the broader aspects of the issue to set parameters for your research </li></ul></ul>
  11. 11. <ul><li>The Table of Contents of Torts in the Nutshell Series has a section titled, Employers, Employees and Contractors. </li></ul><ul><li>This section introduces and defines the following terms: </li></ul><ul><ul><li>Vicarious liability </li></ul></ul><ul><ul><li>Scope of employment or course of employment </li></ul></ul>Employers, Employees and Contractors
  12. 12. Vicarious liability is a form of strict liability by which A is held liable to another for the tort of B for no reason other than that there exists some relationship between A and B and B was acting within the scope of that relationship when he committed the tort. The overwhelming number of vicarious liability cases arise from the employer-employee relationship. … (S)cope (or sometimes “course” or “scope and course”) of his employment … is a question of fact which considers the employee’s job description or assigned duties, the time, place, and purpose of employee’s act, the similarity of his conduct to the things he was hired or authorized to do or which are commonly done by such employees, and the foreseeability of his act.
  13. 13. <ul><li>Torts in the Nutshell Series discusses the general black letter law that applies to the vicarious liability of employers for the acts of their employees. </li></ul><ul><ul><li>Once it is determined that the tortfeasor was an employee at the time he committed the tort, his employer is vicariously liable if his conduct is within the scope of his employment. </li></ul></ul><ul><li>Torts, in the Black Letter Series, describes the liability of an employer for the intentional torts of employees: </li></ul><ul><ul><li>An employer is vicariously liable for his employee’s intentional torts committed in the scope of his employment and in furtherance of his employer’s business, at least if the employee’s act was foreseeable. </li></ul></ul>
  14. 14. Black letter statements of the law from Torts in the Black Letter Series
  15. 15. <ul><li>You have found relevant terms of art and black letter statements of the issue which enables you to determine the focus of your research. </li></ul><ul><li>The fact that the assault was an intentional act and whether the act was in furtherance of Acme’s business and foreseeable will be important considerations. </li></ul><ul><li>You can now lay out the broad parameters of the issue and state the issue using appropriate legal terminology. </li></ul><ul><li>You must persuade the court that Ronnie’s intentional act was outside the scope of his employment. </li></ul><ul><li>You must also anticipate the arguments of your opponent. </li></ul>
  16. 16. <ul><li>Issue </li></ul><ul><li>When Ronnie assaulted the plaintiff, was he acting within the scope of his employment with Acme? </li></ul><ul><li>Two Step Determination </li></ul><ul><li>Torts in a Nutshell lays out two questions that will help you determine if Acme is liable for Ronnie’s actions. </li></ul><ul><ul><li>Was Ronnie an employee at the time of the accident? </li></ul></ul><ul><ul><li>Was Ronnie’s conduct within the scope of his employment? </li></ul></ul><ul><li>The second step will be the focus of your research, as there is no issue as to Ronnie’s employee status. </li></ul>