Legal Research and Analysis CHAPTER 7 Legal Research and Analysis

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

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

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

Researching Case Law— The Preliminary Steps Determining Your Research Goals Published and unpublished opinions Unpublished opinions can sometimes be cited Look for statements by the court Persuasive authorities

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 Learning Objective: How primary and secondary sources of law differ and how to use each of these types of sources in the research process.

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

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

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

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

Finding Relevant Cases Other Secondary Sources Treatises Hornbooks Restatements of the Law Statements of principles of law, followed by discussions Legal Periodicals

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 Cont.

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

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 Learning Objective: How court decisions are published and how to read case citations.

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

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

Analyzing Case Law The Components of a Case Case title Case citation Docket number Dates argued and decided Syllabus Cont.

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

Analyzing Case Law

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 Learning Objective: How to analyze case law and summarize, or brief, cases.

Analyzing Case Law Summarizing and Briefing Cases Citation Facts Procedure Issue Decision Reasoning Holding

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

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 Learning Objective: How federal statutes and regulations are published, and the major sources of statutory and administrative law.

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

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 Learning Objective: How to interpret statutory law and understand what kinds of resources are available for researching the legislative history of a statute.

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”

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

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

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.)

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

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