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LEGAL RESEARCH I FALL 2010

Professor Graves KrishnaswamiSeminars C & D

Wednesdays & Thursdays 9:55 am

Cornell Seminar Room

Introduction to Legal Research

Fifth Hour Legal Research Program Fall 2013

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).

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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 you’re at as well as what you’re looking for from the materials

You will usually need to look at several secondary sources to determine what law applies to your research plan

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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

HeadnotesCasesSecondary 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:DatabasesIndexTable of Contents

Statue Annotations Secondary SourcesCasesRegulations

CaseHeadnotes Citing ReferencesCitatorsTable of Authorities

Secondary SourcesCrafting ArgumentsResearch 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 Chronological Arrangement

Topical Arrangement

Case Reporter Official Unofficial

Digest Headnotes

Statute US Statutes at Large Codes Titles = Subjects Official (USC) Unofficial (USCA, USCS) Annotations

Regulation Register, Federal Register

Code, Code of Federal Regulations

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• 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.

PUBLICATION OF CASE LAW

Publication of Federal Case Law

Court Official Unofficial

U.S. Supreme Court

United States Reports =U.S.

1.) Supreme Court Reporter (West)= S. Ct. 2) Lawyers’ Edition (Lexis) = L. Ed., L. Ed. 2d

U.S. Courts of Appeal

N/A 1) Federal Reporter (West) = F., F. 2d, F. 3d

U.S. District Courts

N/A 1) Federal Supplement (West) = F. Supp., F. Supp. 2d

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 on-

point intermediate or trial court decision that’s 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: author’s experience/education (not format).

Learn MoreMorris 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.