PUTTING IT ALL TOGETHER Research from Start to Finish

“There must be some law on this. Write me a memo.”

Don’t panic! You know more than you think you do.

The Research Process is Recursive

Research Process is Recursive – – Get familiar with the problem – – “Pre-research” governing law substantive area – – Initial search for authorities - preliminary understanding of legal context – – Refine understanding – – Focus search for authorities, updating, etc.

A little advice – make friends with your court or firm librarian.  Attend the library orientation.  Ask about in-house databases, newsletters and practitioner materials on your topic.  ASK QUESTIONS!!

Before you begin - Understand the assignment  Get familiar with your problem – Listen and take notes – Read underlying documents – Ask questions  Resources – online or print? Money constraints?  Time Frame?

Before you begin –  How much time?  Which resources?  Terms of art?  Search queries? Before you begin - Plan your research

More advice – Follow good research habits

Get familiar with your problem: Pre-research analysis – – What general area of law am I dealing with? Do I know anything about this area? – – Does my workplace have a central electronic file of memos, briefs, forms, transactional documents, etc.? – – Is an in-house expert willing to talk with me? – – Federal law or state law or both? If state law, what state?

Analyze the Facts  Analyze the facts (who, what, when, where, why)  Preliminary Analysis  Inter-relationship between legal theory and facts  Relief client seeks  Procedure  Make an Outline

– – May be unnecessary given results of pre- research In-house document may explain legal context In-house expert may help understand legal context – – If area is unfamiliar, begin with what you know & what you have easy access to - Initial Search for Authorities

Refine understanding of problem – – Ask more questions in light of initial research Factual questions Type of transaction “Reality-test” ideas (if you have a sounding board) – – Scope out further lines of research, e.g.: Additional cause of action Additional legal theory

More Focused Search – – Itself a recursive/reflexive process Use finding tools Locate authorities Update authorities Read authorities – – For substantive content – – To find additional authorities Step back to reflect on findings and evaluate results.

Research Pathways Familiar areaUnfamiliar area – Appropriate secondary source available – Appropriate secondary source unavailable

Research in a familiar area May be an area you are familiar with through pre-research Make sure that you really are familiar – – Factual similarity – – Procedural/transactional similarity Begin with known sources in appropriate hierarchy (const., statute & regs, cases) Update

Unfamiliar area? Start with a Secondary Source  law review articles  encyclopedias  treatises  nutshells  hornbooks  ALR annotations

About Secondary Sources Treatises ARE good! Distinguish between: – – Secondary sources useful as finding aids/background – – Secondary sources you can cite.

Start with secondary source – if you find a statute: – – Note effective date – – Read text of statute & cross- referenced statutes – – Browse surrounding sections & case annotations – – Look for references to regulations – – Look at TOC for other relevant statutes – – Update all sections to make sure you have the section in effect at relevant point in time – – Use notes of decision to identify and list cases interpreting relevant statutory language

If you find a statute - continued Specifically, you’re looking for: – – Definitional sections – – Sections on construction – – Cases interpreting the statutory language – – References to regulations – – Congressional findings & purpose

Start with secondary source – if no statute Look for cases – – If there is a leading case, read it for further citations – – Mine it for topics and key numbers – – Double-check with a word search that omits topics/key numbers – – Shepardize or KeyCite to expand research – – Shepardize or KeyCite to validate (update).

If you start with primary materials - look for a governing statute Use two independent methods – – Index to relevant code (on-line or in print) – – Natural language search

Try West Digests for your jurisdiction – – Descriptive word index search for topic/key number – – Natural language search – – Reserve terms & connectors search For more targeted searching once you have familiarity with the language used For special field searching – – Then follow same process as when you start with a secondary source If you start with primary materials – and no governing statute

Three hours on Westlaw and nothing to show for it—now what do I do?  Ask if there are other sources you should look at.  Make sure you understand the question.  “10-minute rule”

Before you go online  Get background about your topic and write out your search.  Search in the smallest database possible.  If you’re having trouble formulating a search:  ask a librarian  call Wexis –

Effective Online Research Segment/field search for precision searching Use Focus (Lexis) & Locate (Westlaw) to yourself Use the TOC Book Browse (Lexis) Next / Previous section (Westlaw)

More Online Tips Search the smallest appropriate database Update with Shepard’s / KeyCite to find cases and/or pending legislation

Which approach is best?  Secondary sources give you a coherent picture of the law, but may not be comprehensive.  Keyword searches, digests, annotated codes are more exhaustive, but don’t evaluate the material.  Westlaw & Lexis headnote are more efficient for finding cases by issue than by fact pattern.  Keyword searches online are good for finding cases by fact pattern, but less efficient for finding cases on procedural issues, and not always accurate or complete.

Research process is recursive: Get familiar with problem “Pre-research” – – governing law, substantive area Initial search for preliminary understanding of legal context Refine understanding of problem More focused search for authorities, updating, etc.

 Review your assignment and research plan?  Consider alternative theories or lines of research?  Look in all important places?  secondary sources  use 2 methods to find statutes & check an annotated code  use 2 case finding methods  Update primary materials?  “closure” Am I done yet? Did you?

DISCUSSION QUESTION You’re scheduled to meet with your boss, Shari Partner, to talk about a new case she wants you to work on. Ms. Partner has told you that the case involves the circumstances under which a successor corporation can be held liable for products of its predecessor in a products liability case. You’re clueless, but you want to make a good impression when you talk with her. Where would you look to get some background about this issue?

1. Under what circumstances can a successor corporation be held liable for products of its predecessor in a products liability case? When you’re not an expert, start with secondary sources to get an overview of the topic and cites to cases/statutes:  encyclopedias (AmJur [Lexis & Westlaw], CJS [Westlaw])  ALR annotations [Westlaw & Lexis]  books/articles  Treatises and Nutshells

AmJur encyclopedia provides a “general rule”, a brief overview of the law, and citations to primary authorities.

ALR is available on Lexis and Westlaw and in print in the law library.

ALR provides detailed analysis in selected topics and citations to relevant cases, statutes and regulations.

Search LegalTrac for journal articles

Search the library catalog for nutshells and other treatises.

DISCUSSION QUESTION You’ve been asked to write a memo on the question of whether corporal punishment in public schools violates students’ constitutional rights. You remember reading a Supreme Court case in law school called Ingraham v. Wright that’s right on point. How would you find the Ingraham case and other cases on the same subject?

2. F ind the cite for INGRAHAM v. WRIGHT. Westlaw: FIND or “field” search Lexis: GET A DOCUMENT or “segment” search Free/inexpensive websites “Table of Cases” in print digest

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2. How do you find more cases that address the same issue as INGRAHAM v. WRIGHT? Use the features of Lexis & Westlaw !!!  Westlaw: Topic/key number search using headnotes from your case  Lexis: “More Like This” “Core Terms” Headnotes (“All” or “More Like This Headnote”)  Use terminology from a case to do key word searching  Look at cases cited in the case  Shepardize or KeyCite the case

Searching by topic / keynumber for more cases.

Searching for more cases on Lexis.- “more like this”

2. How do you find still more cases that address the same issue as INGRAHAM v. WRIGHT? Use Lexis & Westlaw !!!  Use terminology from a case to do key word searching  Look at cases cited in the case  Shepardize or KeyCite the case

Limiting by jurisdiction

DISCUSSION QUESTION Your boss has given you a brief he’s written and asks you to find a few cases that say that there has to be consideration for a contract to be valid. Where would you look?

3. Where would you look for citations to cases that say there has to be consideration to make a binding contract? To find cases that define terms: Words & Phrases [Westlaw]  If you can’t find a case:  Restatement of Contracts [Lexis & Westlaw]  Law Dictionary (Black's) [Westlaw]  Major treatise (e.g., Corbin on Contracts) [Lexis & Westlaw both contain selected treatises]

WP stands for “Words & Phrases”‘

DISCUSSION QUESTION You’re a research assistant, and you receive an from your professor: “I’m updating my consumer protection law casebook. I need to know which states allow individuals to sue for damages for deceptive trade practices, in which this is a criminal offense, and where the state attorney general can bring a lawsuit. Please provide the cites and relevant texts.”

4.Where do you look to find the statutes on deceptive trade practices in all 50 states? If your first reaction to a research assignment is: “OMG, I don’t know where to begin!” Your first step should be to talk to a librarian

4. Where do you look to find the statutes on deceptive trade practices in all 50 states? LEXIS OR WESTLAW  Westlaw: SURVEYS database [ National Survey of State Laws ]  Lexis: States Legal - U.S. > Combined States > Find Statutes & Legislative Materials > LexisNexis 50 State Surveys, Legislation & Regulations >> [topic]  Martindale-Hubbell Digest of State Laws [Lexis: MARHUB;MHDIG]  Other Secondary Source:  Subject Compilations of State Laws, law review articles, etc

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OTHER SOURCES Subject Compilations of State Laws law review articles encyclopedias / ALR

DISCUSSION QUESTION Since you started law school, your friends and family have been asking you for legal advice. This time it’s your grandparents, who have recently retired and moved to Asheville. They just bought a new Prius that’s turned out to be a real lemon. Where would you look to see if North Carolina law protects consumers whose new cars don’t live up to their warranties? (You’ve checked with your boss, and been told that you may use any of the firm’s resources).

5. How do you determine if North Carolina law protects new car buyers? Start with a secondary source! (e.g., a state legal encyclopedia)

U.S. STATE MATERIALS > > NORTH CAROLINA > > Forms, Treatises, CLEs and Other Practice Material

ANNOTATED CODES  Annotated codes include research aids and summaries of cases decided under the statutes  Lexis  Westlaw  print

ALWAYS UPDATE STATUTES!  Search the public law and bill databases by key word or using the cite as a search query.  Use Shepard’s or KeyCite.  Check pocket parts (or pamphlets) & advance sheets for print code.

A little advice – make friends with your court or firm librarian.  Attend the library orientation.  Ask about in-house databases, newsletters and practitioner materials on your topic.  ASK QUESTIONS!!