The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman Part II Chapter 10: Traditional Computer and Internet Legal Research The Paralegal Professional ESSENTIALS, Second Edition

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Legal Research Issues Law changes constantly. Answers to clients’ problems must be current. Paralegals need to identify issues and determine where to look for answers. Valid precedent may include old cases. Computers speed up searching, but may narrow the scope of the search to those materials included in that particular database.

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Legal Research Sources Legal questions will be answered by using a variety of resources: Federal, state, and local statutes/court rules Federal, state, and local administrative regulations Federal, state, and local case law

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Research Plans What is the legal issue? What terms will produce information? What type of material is available? What jurisdictions are involved? What is the controlling law? What resources can be used? Is this the current, applicable law?

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ The 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 and contrasting the client’s facts with existing law, and/or determining the elements needed to make a case (or defend against one)

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ 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, and lexicons to find additional terms.

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ 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.

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Jurisdiction The body of legal resources is divided into federal, state, and 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.

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ 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, and decisions. Some areas (family law) may have significant statutory and case law required to answer a question. Access to local law (ordinances) may require Internet searches or even travel.

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Types of Resources Primary resources – “the law” Constitutions Statutes Rules and regulations Case law Secondary resources – commentary Legal encyclopedias Periodicals (law reviews, journals, digests) Lexicons Treatises (“Hornbooks,” restatements, etc.) Textbooks

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Types of Resources, cont. Finding Tools – locators West’s state and federal digests Shepard’s Index to Legal Periodicals Do not contain reference materials, but will provide cites to applicable materials

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ 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 and recognizing that there may be overlap. Completion of the plan may be obvious when the same resources arise over and over. Be sure to preserve all of the information necessary for formal citation.

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Finding the Law Legislative branch – statutes, including enabling statutes that create administrative responsibilities. Judicial branch – case law and procedural rules, as delegated to courts from the legislature. Administrative agencies – rules and “regs,” as determined by the enabling statute.

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Finding the Law, cont. A research cycle might include: Secondary sources for background in new areas of law, then Statutes, then Regs, then Case law The cycle can begin anywhere, but must include controlling law in the proper jurisdiction.

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Mandatory Authority Legal authority the courts must follow (binding) Enacted law in the jurisdiction where enacted Constitutions Statutes/ordinances Regulations Case law from higher courts Court of “last resort” in a jurisdiction Intermediate appellate courts, where applicable, over trial courts

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Persuasive Authority Courts are not required to follow it, but its guidance is well-respected. Sister courts (other appellate districts) Other jurisdictions (other states, lower courts) Some types of secondary authority (restatements, etc.)

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ 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.

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ 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.

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ 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 and unreported cases Some states have reported cases on free sites. Paid databases provide access to state reported and unreported cases.

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Reported 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

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Decisions Most print versions have: Editorial features from the publisher Interpretations, abstracts, procedural summaries, syllabi Headnotes, which are also digest entries and topic guides for Shepard’s 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

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ The 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.

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Secondary Sources Ranges from short headnotes to multi-volume treatises on legal issues 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

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Legal Dictionaries May be referred to as “lexicons.” Explains legal concepts and Latin terms, and provides the legal usage of common terms. Range from large, comprehensive (Black’s Law Dictionary) to pocket-sized versions.

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Legal Encyclopedias Secondary sources of background material National encyclopedias (CJS, AmJur) State encyclopedias, e.g., Texas Jur., N.Y. Jur., Ohio Jur. Finding tools Entries are tied into the source used to determine the law Case cites Statutory/constitutional/regulation cites Other secondary source cites

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Treatises, Law Reviews, and Legal Periodicals Secondary authority May rise to the level of persuasive authority (Hornbooks, restatements) May explain “cutting-edge” law (legal periodicals, electronic articles) May provide good guidance in constructing a sound legal argument May include advocates’ position papers

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Finding Tools Indexes and digests Working from legal concepts (and using a variety of terms) they provide cites to primary and 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

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Personal Research Strategy Define the legal issue or question Determine the area of law (may need some initial exploration into secondary sources) Computer search engines can locate specific cases or statutes Beginning from the issue (Boolean search of the topic) or from a cite (citation search) Initial leads may come from non-legal sources, such as news articles or online advocacy sites

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Printed Legal Reference Works Explanation of the coverage of the resource How to use the resource Table of cases, statutes Explanation of abbreviations used (this may vary from publisher to publisher) Whether references are by page number or section (§) number Table of contents or topical outline, index Updates (pocket parts or supplemental volumes, with changes since the publication date)

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Computer Searches Online, paid legal databases, e.g., Lexis, Loislaw, Westlaw provide a wide spectrum of resources for searching with queries or cites. Limited sites, e.g.,VersusLaw, use similar search methods, but limit the available resources. Government sites (.gov) have some primary material available (USC, CFR, some state enacted law), with less sophisticated search mechanisms and no annotations.

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Queries Identify key words and concepts in your issue Determine how to handle phrases Parentheses will search for the enclosed term character by character Connectors determine the proximity of the required results OR indicates alternative terms (broadens the search) AND indicates additional terms (narrows the search) NOT eliminates material that contains a specific term NEAR (may be within a specific number of words, the sentence or the paragraph) requires multiple terms to appear close to one another

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Updating Legal Research Stare decisis, or precedent, means that prior decisions have some weight in current cases. However, a thread of decisions may be affected by a change in the law: Supreme Court decision concerning constitutionality (Roe v. Wade) Statutes passed by the legislature (Civil Union laws) Higher court determining a change in the law is needed to respond to new circumstances (in vitro fertilization and surrogacy affecting “parentage”)

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Shepard’s Citations Available in written form and online through Lexis (KeyCite is the Westlaw equivalent) Can check a case or statute cite to determine how it was treated AFTER initial publication Any case that subsequently mentions the cited case will be listed with notations concerning how the initial case was treated. An “r” for reversed or an “o” for overruled affects the precedential value of the cited case. Updates are published frequently, and are available by phone or online.

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Other Validation Sources GlobalCite is available through Loislaw. KeyCite is available through Westlaw. V.CITE is available through VersusLaw.

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Parallel Citations In states that have state reporters in addition to the regional reporter case cites, it is common to include two official source cites in a case citation: Massachusetts v. O’Laughlin, 446 Mass 18, 843 N.E.2d 617 (2006) Shepard’s provides both cites in their “Case Name Citators,” listing cases by both plaintiff and defendant names