Agenda: Ch. 10 Legal Research Review for Final Exam Welcome to Unit 9! Agenda: Ch. 10 Legal Research Review for Final Exam

The Paralegal Professional Chapter Ten Traditional and Computerized Legal Research

Legal Research One of the most important skills a paralegal can develop is the ability to find current relevant legal and factual information in a timely manner. Legal research is a process for finding the answer to a legal question.

Creating a Research Plan What is the legal issue? What is the appropriate search terminology? What type of research material is available? What jurisdictions are involved? What is the controlling law? What resources can be used? Is this the current, applicable law? Where should the needed research material be located?

Creating a Research Plan (cont.) Legal Issue May just be locating cases or statutes from cites provided by the attorney More often, will involve answering a question using a variety of sources Will involve comparing & contrasting the client’s facts with existing law, and/or determining the elements needed to make a case (or defend against one)

Creating a Research Plan (cont.) Search Terminology Different publishers use different “entry words” to describe legal concepts Automobile/vehicle/motor vehicle Child/infant/juvenile/minor Whether online or in indices to books, creating a list of viable starting places at the outset is important Can use secondary material, legal thesauri & lexicons to find additional terms

Creating a Research Plan (cont.) Types of Research Material Different firms utilize different approaches Internet, computer databases, books Will use any or all of these resources for any one question Paralegals must be ready to use any available resource for research Traditional research can provide entry terms, while computer research requires them to enter a search

Creating a Research Plan (cont.) Jurisdiction The body of legal resources is divided into federal, state & local material Answers may differ depending on the body of law consulted Determine the applicable jurisdiction before beginning research Be particularly careful with online research, which may provide answers from other jurisdictions

Creating a Research Plan (cont.) Controlling Law Some areas of law (e.g., torts) may rely upon case law, while others (criminal) will begin with statutory law Statutory law may be augmented with administrative law, “regs,” rules & decisions Some areas (family law) may have significant statutory & case law required to answer a question Access to local law (ordinances) may require internet searches or even travel

Creating a Research Plan (cont.) Types of Resources Primary resources – “the law” Constitutions Statutes Rules & regulations Case law Secondary resources – commentary Legal encyclopedias Periodicals (law reviews, journals, digests) Lexicons Treatises (“Horn books”, restatements, etc.) Textbooks Exhibit 10.2

Creating a Research Plan (cont.) Types of Resources Finding Tools – locators West’s state & federal digests Shepard’s Index to Legal Periodicals Do not contain reference materials, but will provide cites to applicable materials

Creating a Research Plan (cont.) Executing the Plan Begin with the list of potential search terms – time spent here is well-invested Determine the sources to be consulted, being flexible about the order & recognizing that there may be overlap Completion of the plan may be obvious when the same resources arise over & over Be sure to preserve all of the information necessary for formal citation

Finding the Law The controlling law may be found at federal, state or local legislative or judicial levels Primary Sources and Authority Primary Sources include: The law Constitutions Statutes, regulations, court rules and case decisions Exhibit 10.3

Finding the Law (cont.) Mandatory and Persuasive Authority Mandatory authority is the legal authority courts must follow Persuasive authority is legal authority the courts are not required to follow but is from a respected source and well-reasoned.

Finding the Law (cont.) Constitutions are primary sources that set the guidelines, limits and authority of the federal government and state governments Statutes are enacted by the legislative branch of the government Court Decisions: the actual court language is a primary source of the law

Finding the Law (cont.) Constitutions Federal is the highest law of the land Guidelines Limits Assignment of authority among the branches of government Annotated versions may be found with copies of the United States Code State constitutions provide parameters for state laws Exhibit 10.4

Finding the Law (cont.) Statutes Enacted by state or federal legislatures United States Code is available online for free or in print Annotated versions (USCS, USCA) provide additional information Annotated versions are also available through paid legal databases

Finding the Law (cont.) Court Decisions Some federal decisions are available online U.S. Supreme Court Some federal intermediate courts May be limited by date of decision Paid databases provide access to reported & unreported cases Some states have reported cases on free sites Paid databases provide access to state reported & unreported cases

Finding the Law (cont.) Court Decisions A Supreme Court “bench” decision is the initially released opinion The “slip” opinion contains corrections Reporters contain the final opinions from a variety of courts Federal Supreme Court, Court of Appeals, District State trial, intermediate appellate (if applicable), and high court Exhibit 10.5

Finding the Law (cont.) Court Decisions Most print versions have Editorial features from the publisher Interpretations, abstracts, procedural summaries, syllabi Headnotes, which are also digest entries & topic guides for Shepard’s

Finding the Law (cont.) Court Decisions The official language of the court Majority, concurring, dissenting opinions Can be cited as primary authority Must be taken in the proper context Must work from the primary (court opinion), not secondary (summary/headnote) language Exhibit 10.7

Finding the Law (cont.) Court Decisions Holding: the decision of the court on the legal issue presented in the case Distinguished from side comments on issues that were not actually decided (dicta) Quoting from the dissenting opinion or dicta is permitted, as long as it is properly identified

Finding the Law (cont.) Secondary Sources Secondary sources explain the law They provide a way to understand a new area of law Discussing elements of a legal claim Explaining terms with which to search for relevant concepts Giving background that illuminates the primary authority

Finding the Law (cont.) Secondary Sources Legal Dictionaries: may be referred to as “lexicons” Explain legal concepts & Latin terms, and provide the legal usage of common terms Range from large, comprehensive (Black’s Law Dictionary) to pocket-sized versions Exhibit 10.9

Finding the Law (cont.) Secondary Sources Legal encyclopedias provide the background to understand the area enough to start the research. Provide an overview of the concepts and history of an area of law, the legal issues involved and the terminology Secondary sources of background material National encyclopedias (CJS, AmJur) State encyclopedias, e.g., Texas Jur., N.Y. Jur., Ohio Jur. Exhibit 10.11

Finding the Law (cont.) Secondary Sources Treatises, Law Reviews, and Legal Periodicals Rise to the level of persuasive authority (Hornbooks, restatements) Explain “cutting edge” law (legal periodicals, electronic articles) Provide guidance in constructing a sound legal argument Include advocates’ position papers

Finding the Law (cont.) Finding Tools help “find” the law Indexes & digests: Work from legal concepts (and use a variety of terms) they provide cites to primary & secondary authority, organized by legal topic May be lists of cases (digests/Shepard’s), statutes, encyclopedia or law review articles (indices) Act as conduits to resources

Personal Research Strategy Over time, personal search strategy developed Methods for verifying law, cases cited and methods for searching for pending cases are developed Know when to ask for help!

Using Printed Legal Reference Works Table of abbreviations, Table of contents, index of terms Table of cases, statutes and citations Whether references are by page number or section (§) number Updates for print material: usually annually with pocket parts Paperback supplements issued annually, quarterly or monthly Online updates becoming available Exhibit 10.15

Conducting a Computer Search Query Requires one to select a computer search index, then the create the query. Search Method & Query: each online provider uses words to find and retrieve documents. As part of the publication process, indexes are prepared of every word in the document, the words are tabulated for frequency and a word index is prepared.

Conducting a Computer Search Query Creating the query: The search engine is used to find the indexed words the paralegal has chosen; they may be legal specialty words or common English words. Using combinations of words in the search can narrow the search results

Conducting a Computer Search Query Using Connectors: “AND” instructs the search not to return documents in which only one of the words is found “OR” instructs the search engine to find either term “NEAR” may be used to find the occurrence of desired words within a set number of words of each other Exhibit 10.16 or 10.19

Updating Legal Research The legal team always must use the most current statutory and case law in advising clients and arguing cases to the court. One of the features of the American legal system is its constant change. An essential part of legal research for paralegals is to verify that they have the latest case or statute.

Updating Legal Research (cont.) Shepard’s: a multivolume set of books listing cases and statutes by their respective citations and giving the citation of every other case in which the listed case was mentioned. Checking citations is often called “Shepardizing.” Available in written form & online through Lexis (KeyCite is the Westlaw equivalent) Can check a case or statute cite to determine how it was treated AFTER initial publication Exhibit 10.20

Updating Legal Research (cont.) GlobalCite Provides a reverse chronological list of the case law KeyCite Online citation update service V.CITE Online citation tool Exhibit 10.23

Updating Legal Research (cont.) Parallel Citation: a citation to the same material, usually a case, in another source Statutory Law Updates: Shepard’s provides updated information on amendments and repeals statutory information. Citations to any cases in which the statute has been cited are also listed, with information on how the case law considered the statute.

UAH Library and Lexis Nexis Kaplan’s full-service online library: UAH (University of Alabama in Huntsville). Lexis Nexis, an online research database.

UAH Library Accessible from your KU Campus Page. Take a tour! Go to your KU Campus Home page to take the tour.

Lexis Nexis Fee-based subscription service On-line Extensive legal research database Don’t be overwhelmed – just understand what it is and that you can use it to access legal resources. You will become familiar with it the more you use it. Take a tour!

Free online legal resources THOMAS (thomas.loc.gov) Named for Thomas Jefferson Maintained by the Library of Congress Access to: Bills making their way through Congress; U.S. Code; Treaties; Federal Committee Reports; And much more . . .

Free online legal resources www.findlaw.com www.law.cornell.edu www.ll.georgetown.edu www.washlaw.edu www.megalaw.com www.lexisone.com www.firstgov.gov www.whitehouse.gov

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