Introduction to Legal Research

Fifth Hour Legal Research Program Fall 2013

LEGAL RESEARCH I FALL 2010

Professor Graves Krishnaswami Seminars C & D Wednesdays & Thursdays 9:55 am Cornell Seminar Room

First Year as a Lawyer

Legal Research (45%) Other Work

Process of Legal Research

Look at fact pattern and formulate an initial issue statement. Issue statement = terms 5Ws Plus Who / What / Where / When / Why TAPP = Things / Actions / People / Places Jurisdiction/procedural posture/relief sought/legal theory applicable
Familiarize yourself w/area of law

If unfamiliar with the law, usually start with secondary sources

Locate, read and analyze primary authority, cases, statutes, administrative regulations

Update primary authority to make sure still good law

Use a citator (Shepards, Keycite)

Revise as necessary, and find additional primary or secondary authority

Depends on what you find initially

Constantly evolving process as you sort through issues

Know when to stop (detailed notes will help you).

Why Start with Secondary Sources? Gateway to primary authority

HOW DO THE TYPES OF SECONDARY SOURCES DIFFER FROM EACH OTHER?

Specificity of coverage

Depth of coverage
Which secondary source you choose

determined by stage of research youre at as well as what youre looking for from the materials secondary sources to determine what law applies to your research plan
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You will usually need to look at several

One Good Case Research Method

- Use the Headnotes - Use the cases and other authority cited by the court (Table of Authorities) - Use the Citator (Shepards / Westlaw / Bcite) to find additional authorities. - Use the terms and words to build additional searches

One Good Statute Research Method

- Use the Annotations Headnotes Cases Secondary Sources - Use the Table of Contents Read other statutes in the statutory scheme

Start Your Research: Use What You Know

Issue statement Words Secondary Sources: Databases Index Table of Contents Secondary Sources Cases Regulations Statue

Annotations

Case

Headnotes Citing References Citators Table of Authorities

Secondary Sources Crafting Arguments Research elements issues

Good Law? Use a Citator

1. Citator = Shepards (Lexis) / Keycite (Westlaw) / Bcite (BloombergLaw) 2. it lists authorities that cite an authority that you have already found. Using citators is the most technical task -- and one of the most important -- in legal research. Kuntz, Process of Legal Research(emphasis added). 3. a citator will indicate how citing cases viewed or used your cited case. 2 Part Analysis of your case: 1. Subsequent History / Direct History of the case in hand (cited case): what happened to your case as it progressed - Judgment Affirmed, Remanded, Pending 2. Treatment of the case in other courts: what did other courts say about your case - Distinguished, Overruled, Criticized, Cited, Mentioned, Followed - Pay attention to jurisdiction of other court and issue (headnote).

4. Using Citing Reference to locate additional authority.

Publication of the Law

Type of Law Case Chronological Arrangement Reporter Official Unofficial US Statutes at Large Topical Arrangement Digest Headnotes Codes Titles = Subjects Official (USC) Unofficial (USCA, USCS) Annotations Code, Code of Federal Regulations

Statute

Regulation

Register, Federal Register

PUBLICATION OF CASE LAW

When they resolve issues of law. Trial cases usually revolve around facts, and are therefore rarely published. Intermediate cases are published selectively, given that many are routine and only of interest to parties. Final Appellate Cases are almost always published, as they deal with important legal issues. Unpublished cases are available on Lexis and Westlaw.
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Publication of Federal Case Law

Court
U.S. Supreme Court

Official
United States Reports = U.S.

Unofficial
1.) Supreme Court Reporter (West)= S. Ct. 2) Lawyers Edition (Lexis) = L. Ed., L. Ed. 2d 1) Federal Reporter (West) = F., F. 2d, F. 3d 1) Federal Supplement (West) = F. Supp., F. Supp. 2d

U.S. Courts of Appeal U.S. District Courts

N/A N/A

case law

Appellate and District Court Opinions

Federal Reporter
_ F. _ _ F.2d _ _ F.3d _

Federal Supplement
_ F. Supp. _ _ F. Supp. 2d _

Unpublished Cases
Federal Appendix
_ Fed. Appx. _

Available on Westlaw and Lexis:

2001 WL 1602030
2001 U.S. App. LEXIS 26786

Evaluating Sources: Subtle Distinctions

1. Precedential v. Non-Precedential / published v. non-published: - Non-published/reported opinions are available in research databases - Non-published/reported opinions are available in the Federal Appendix (unofficial reporter reporting federal cases) - FRCP 32.1 and local rules: different legal systems permit different legal authority. - Remember, a high court decision is virtually always better than onpoint intermediate or trial court decision thats unpublished (even if more factually on point but you can still use the case for research). 2. Positive law v. Prima Facie Law - Use reputable official and unofficial codes and websites - Read use the SOURCE 3. Professor v. Student Law Reviews - Animal Farm Principle: all secondary authority is persuasive but some is more persuasive than others (e.g. Restatements, ALRs) - Indicators of authority: authors experience/education (not format).

Learn More
Morris Cohen, Legal Research in a Nutshell (10th ed. West 2010). The Nutshell is available on course reserve in the law library and on L5 at call number: KF240 .C54 2010. http://morris.law.yale.edu/record=b1036421~S1. Mark K. Osbeck, Impeccable Research: A Concise Guide to Mastering Legal Research Skills. This text is available on course reserve in the law library. http://morris.law.yale.edu/record=b1035252~S1. Research Guides, http://library.law.yale.edu/research-guides. Online Tutorials, http://library.law.yale.edu/research/online-tutorials.