Chapter 13
IN THIS CHAPTER
Grasping the basic steps of legal research
Getting familiar with the most important case finders
Researching outside the book
Formatting citations properly
You may find your most challenging yet rewarding responsibility as a paralegal is the hours you spend conducting legal research, whether in a law library or online. Legal research is a critical component in the success of civil and criminal law suits. Understanding legal research provides you with a passkey that opens doors to virtually every legal issue that might arise in the typical law office or freelance paralegal practice.
But by the same token, legal research has been known to result in endless hours of frustration, especially if you’re new at it. You must access an extensive amount of material that grows larger by the day. And because the law invariably changes, the legal material you find today may not appear in the same form tomorrow. It’s subject to continuous revision and updating. You may get so inundated with legal material that you reach the point of sensory overload!
When you tackle research for the first time, you may find that simply beginning the process can be the major obstacle to thorough and efficient legal research. You can usually spot neophyte paralegals in the law library quite easily. They’re the ones listlessly roaming the stacks like zombies. This may seem like a natural state for you at first. However, as you become accustomed to the inner sanctum of the law library or online legal research, you’ll rapidly develop a routine. With time, this routine becomes so ingrained in your research style that the question of where to begin researching becomes academic. Before long, you’ll join the ranks of seasoned legal research veterans who find it to be immensely enjoyable and challenging. Many paralegals find themselves thriving on the rigors presented by complex legal research problems.
This section focuses on conducting traditional research. Even if your law firm primarily uses online research tools, make sure you’re familiar with the steps involved in finding law in traditional law books to have a better understanding of the process.
The odds are you won’t find a magical, universally accepted approach to complete and thorough legal research. But many paralegals, law students, and attorneys use a simple approach that involves the following four steps:
Begin the research process by consulting legal dictionaries.
Ballentine’s Legal Dictionary and Thesaurus, Black’s Law Dictionary, Words and Phrases, and William Statsky’s Legal Thesaurus/Dictionary are examples of some of the most popular tools you’ll use to come up with as many terms pertaining to the legal research problem as possible. Compile a comprehensive list of terms that appear to relate to the issues of the case. Include synonyms, antonyms, and other relevant expressions. This process is known as cartwheeling.
Determine which court jurisdiction the research problem involves.
You need to figure out whether the research problem involves the federal or state court system. From there, you establish the specific level of court you’re dealing with in either system.
Discover the applicable law.
The kinds of law resources you consult depend on whether you’re researching on the state or federal level. We give you more information about the specific resources listed here later in this chapter in “Tools of the Trade.”
If the problem is a state court matter, research these resources:
If the problem is a federal court matter, expand your research:
Shepardize or otherwise validate each of the primary authorities you’ve found.
To make certain that what you’ve found is still good law (that is, that subsequent court decisions haven’t overruled, modified, or reversed any of your authorities), use Shepard’s citations. Shepardizing may also point you toward additional on-point statutes or cases. Note: If you have access to Westlaw or Lexis Advance, you should consult these online update services because they’re usually more current than the Shepard’s volumes you find in the law library.
When you look up cases in Shepard’s to determine if they’re still valid or to find other cases that may have followed or otherwise approved of the decisions, you’re doing what’s called Shepardizing, or checking the current status of a case.
Following an approach that includes the steps outlined in the preceding section allows you to successfully meet the challenges of legal research without resorting to too many aspirin tablets. Your main concern with legal research will soon become not where to begin a project, but when to end it. After you’re in a law library or logged in to an online legal research database, you may discover that you’re so inundated with information and so intellectually stimulated by tracking down the answers to the research problem that you lose track of time. Don’t get locked inside the library!
What is your legal research deadline? When you’re working under the gun to find the right case, the time constraint itself becomes a much more common determinant for ending a research project than finding the most applicable mandatory authority. Many law offices function in crisis mode, and the pressure of the deadline may preclude complete legal research.
Unfortunately, because most law offices have a heavy workload, many attorneys are famous for waiting until the last minute to give research projects to their paralegals. So, much of the time, you’ll need to hustle to get in the most research in a limited amount of time. Very simply, your research task ends when your time runs out.
In addition to knowing where to begin and how to end legal research, you need to get to know the five main tools of legal research:
The five main research tools comprise the heart of many law libraries and are exceptionally useful for performing background research on a topic, understanding a research topic, finding leads to primary authority, and validating the primary authority after you’ve located it.
Legal encyclopedias, like Corpus Juris Secundum and American Jurisprudence, 2d, help you get a broad understanding of the legal issue you’re researching and the relevant facts surrounding that issue.
First you find the general topic in the encyclopedia and scan through the text until you uncover a specific topic that matches your research problem. Then you consult the footnotes to find applicable cases as well as the current updated authorities in the pocket part, which literally appears in a pocket at the end of the book.
Corpus Juris Secundum (CJS) lists very broad categories by titles and subsequently narrows them into more specific subdivisions. Within each title, the subdivisions are numbered by section. CJS organizes the sections within each title like this:
You can find topics in CJS either through the title outline or the index. Near the front of each CJS volume is a topic outline that includes all the titles in the CJS series. After you find a relevant topic in the outline, you access the particular volume that includes that title. From there, you narrow the general title to a subtitle that’s relevant to your research problem. At the beginning of each title, you find an even more detailed outline that contains more specific information about the issue you’re researching.
You can use the index to research CJS. The index alphabetically lists titles, subtitles, and cross-references. The index approach helps if you already know the vocabulary related to the legal topic you’re researching.
American Jurisprudence 2d (Am. Jur. 2d) contains organization strikingly similar to CJS, but because it’s a relatively newer publication it has more stuff. Am. Jur. 2d provides two items that CJS doesn’t have:
Each volume of American Law Reports (ALR), except for the index volumes, contains case opinions and articles entitled annotations.
The ALR annotation technique has evolved from the selective case system of legal reporting in which only cases of general legal significance are reported. The editors of ALR analyze and interpret these cases and place them into a current legal context. Today, each ALR annotation begins with the complete text of a recent appellate case that illustrates the annotated point of law. The annotations have become so informative and comprehensive that they have far eclipsed the importance of the illustrative cases in the reports.
The ALR staff writes or edits information in the ALR entries. This information includes a summary of the decision, headnotes, a listing of the appearances of counsel, several sample briefs of counsel, and the case opinion. Following the case opinion, you find the annotation, which collects and analyzes the law pertaining to the legal issue that relates to the annotated article.
Most ALR annotations include the following information:
You can use three main research approaches to find specific topics in the ALR volumes:
After you find references, you can use the Annotation History Table to see if the annotations have been overruled or supplemented since the annotation was published.
You use digests to find relevant cases by topic. Thomson West is the primary publisher of digests, and its key-number digests are fundamental to the legal profession. Digests contain small summaries (much like the headnotes in reporters) of the points of law (arranged by topic and assigned a key number), but don’t contain the actual text of the law.
West’s digest system assigns a permanent key number to a specific point of case law, and every point of case law has its respective key number. The organization of the West Key Number System generally follows West’s Outline of the Law, which includes seven main divisions of the law and 414 subdivisions. You can answer most research questions by finding references to the pertinent case law in the key number digests and then examining the resulting primary authority in the appropriate reporter. Key Number Digests are among the most significant creations for accessing case law.
To use West’s digests, access the topic names and key numbers through one or more of the following means:
In most cases, the West Key Number System is the fastest, most universally accessible approach to researching any digest or reporter. You can use the West Key Number System to find cases on a specific topic in any other jurisdiction included in West’s digest system. All you need to remember is the topic and key number for reference when you move back and forth between jurisdictions.
West’s digest system contains a number of different volumes available for research purposes. The West system digests federal court decisions, federal issues (in different specialized reporters), and regional decisions. The Key Number Digests also include state digests that cover all states except Utah, Nevada, and Delaware.
Digests point you to relevant cases and summarize their decisions, but you find the actual case decisions in a reporter. There are federal, regional, state, and topical reporters. In most reporters, the case begins with headnotes, which are short summaries of important legal issues within the opinion. You can use the headnotes to identify the issues of a case and maybe locate additional relevant authority by using the key numbers associated with the headnotes to refer back to the digest.
Following the headnotes is a case synopsis, which summarizes the entire case opinion. After the synopsis comes the entire official case opinion. When you include case references in your memos, quote from the official opinion you find in the reporter.
After you’ve found on-point primary authority, you have to validate that authority. Shepard’s Citations, along with similar validation services such as West’s KeyCite, provides a method of checking the status of a case in light of more recent legal developments. A citator provides a list of references to sources that have cited the cases you find. For instance, if your research exposes on point case, like Land v. Hill, 70 Wash.2d 80, 644 P.2d 43 (1961), you need to find out whether the case is still good law (that is, whether any subsequent cases have overruled or reversed the original case). To accomplish this important task, you look up Land v. Hill in a Shepard’s citator to find all the cases that have cited Land v. Hill, how those cases have treated it, and any history relationship between the cited case and the citing cases.
To use Shepard’s, first locate the appropriate citator. Because a Washington state court decided Land v. Hill, look in either the set of Shepard’s that covers the Pacific Reporter, which is Shepard’s Pacific Reporter Citations, or the set covering Washington cases, Shepard’s Washington Citations, to find the appropriate volume of Shepard’s. There is a set of Shepard’s Citations for nearly every existing reporter.
After you’ve found the correct set of Shepard’s Citations, consult the page that lists the volume and page number of the case you’re Shepardizing. In the appropriate volume on the specified page, you’ll find the list of cases that cite the Shepardized case. The first of the listed cases is the parallel citation, which is a cross-reference to another publication that sets forth the Shepardized case and is shown in parentheses.
After parallel citations, the column lists cases that have a history relationship to the Shepardized case. These cases generally involve the same parties, the same facts, or the same litigation as the cited case. The history relationship is shown by history letters, which are abbreviations indicating what happened to the case on further appeal. For instance, if the citing case set aside Land v. Hill, the Shepard’s notation indicates Land was vacated on appeal. History letters may also indicate other locations where the same case or a connected case has been reported.
Next, Shepard’s lists cases that don’t involve the same parties, facts, or litigation but have made reference to the cited case. The citator arranges these cases chronologically by jurisdiction from least current to most current. The citator may list many jurisdictions, and it arranges cases within each jurisdiction chronologically.
Shepard’s shows many other abbreviations. You can find a complete listing in the front of each volume of Shepard’s Citations.
After you examine the case listings in the main volumes of Shepard’s, check for additional citing references in any of the supplements to the particular citator you’re using. You can find supplements in the gold or red pamphlet volumes or in white advance sheets. If you’re Shepardizing a case that was decided in a state for which Shepard’s publishes Shepard’s EXPRESS Citations, you’ll need to check for citing references in that publication as well. Shepard’s EXPRESS Citations provides the most current citing references to a case and summaries of many of the treatment and history analyses that discuss the nature and impact of the citing judge’s comments.
No Shepardizing job is complete until you check all relevant and the most up-to-date volumes of Shepard’s. The best way to determine whether you’ve accessed all the necessary volumes, supplements, and advance sheets is to read the front cover of the most current publication, where it says “What Your Library Should Contain.” This legend lists every publication you should consult to thoroughly Shepardize authority, including Shepard’s EXPRESS Citations in states that it’s published for. Studying “What Your Library Should Contain” is sometimes referred to as reading the box.
As you use Shepard’s citators more frequently, you become familiar with the format of the books and the table of abbreviations in the front of each volume and supplement. Shepard’s also has an online service available on Lexis Advance.. When you use Shepard’s correctly, you know you’ve consulted all relevant authorities and your research is current and thorough.
Westlaw offers KeyCite, an online validating tool that integrates with the West Key Number System to provide current history for state and federal cases in the national reporters and many unpublished decisions, state and federal statutes and regulations, and administrative and IRS decisions. When you find a case using Westlaw, you can immediately see its current history and complete headnotes so you don’t waste a bunch of time reading a case that no longer provides valid legal precedent. (For more information about using Westlaw online research, see the “Westlaw” section later in this chapter.)
Through KeyCite tabs, you can discover the following:
KeyCite uses flags to clearly warn you about negative history. A red flag at the top of the case means the case is no longer good law for at least one of its points of law. A yellow flag tells you that the case has some negative history but hasn’t been completely reversed. You can also set up KeyCite Alert to receive updates on a case you’ve found and warn you of any current negative treatment.
Legal research doesn’t have many shortcuts. However, prior to accessing the five legal research tools, you should examine all available office form files and copies of previously prepared briefs on the same topic as you currently research a project to obtain leads to primary authority. You can also consult experts on the topic or other attorneys who’ve successfully litigated similar cases for leads to the proper primary authority. Other attorneys often accommodate a paralegal’s request for copies of briefs and other documents. This invaluable resource can jumpstart your often-overwhelming research project.
In the last quarter-century, the art and science of legal research has undergone changes of revolutionary proportions. In that time frame, attorneys and paralegals have transformed their research practice from one of primary, or sole, reliance on books toward a blend of text and computer legal research. Many law firms now rely exclusively on computer resources for all their research needs. Computers and the practice of law are becoming increasingly interdependent. Today, computerized legal research in the form of paid online research services, such as Westlaw, Lexis Advance, and Bloomberg Law, have made legal research almost easy.
Virtually any research you can do manually in a law library you can also perform on Westlaw, which makes any manual task much less time-consuming through the speed of computers and the convenience of having all research sources in one location: the computer terminal.
Although computerized legal research is expensive to access, it offers great flexibility and convenience for paralegals who lack adequate law libraries. Research databases allow paralegals to access a law library through their computers. And Westlaw, with its unique access to the West Key Number System, is one of the most effective research databases on the market.
Westlaw makes learning how to perform conduct online legal research pretty pain-free with its free trial access and training sessions. You can sign up for access with a paid subscription plan tailored to your specific needs. New databases and features appear on Westlaw regularly and products such as Westlaw Next use common language searches to streamline your research tasks.
The databases under the Lexis Advance umbrella provide attorneys and paralegals with just as much power to conduct legal research as Westlaw. Lexis Advance allows the user to find case law, statutes, administrative rules, court rules, and a plethora of other legal resources. In addition, the Lexis Advance web-based service also provides access to news and business sources.
You access Lexis Advance pretty much the same way you do Westlaw. You first formulate your search query before signing on to Lexis Advance. Database services often charge the law firm by the minute, so make sure you know what you’re looking for prior to logging on!
After you’ve signed on, select a source of material where you want to conduct your search. You can search in certain areas of law, such as administrative law, constitutional law, or criminal law. You may limit your search to a particular jurisdiction, such as federal bankruptcy court decisions or only those court cases from a particular state or region. Or you can search the entire U.S. legal system.
Finally, Lexis Advance allows you to Shepardize your case to validate your results. Shepardizing your case ensures that you’ve found the latest cases and that subsequent court decisions have not overruled or reversed the authority you’ve found. It also helps you to find additional on-point authority.
Relatively new to the online research field is Bloomberg Law. This comprehensive subscription-based option is a viable alternative to the more expensive Westlaw and Lexis Advance products online legal research site that facilitates access to primary and secondary source material, time-saving practice tools and analytics, and more with an emphasis on law in a business context.
Many law school law libraries are available online, and social media, newsgroups, and email provide access to global communication. New information becomes available on a daily, and even hourly, basis. Attorneys and paralegals are finding that they can do a tremendous amount of legal research on the Internet.
You might want to simply experiment with some of the sites on the World Wide Web. One example is the Internet Legal Research Group (www.ilrg.com
). This site organizes, categorizes, and indexes helpful legal websites and provides access to more than 2,000 downloadable legal forms and documents. Other sites such as Law Guru (www.lawguru.com
) provide the user with a database of answers to commonly asked legal questions. Still other sites such as Findlaw (https://lp.findlaw.com
) provide the user with court rules, statutes, court cases, and forms.
Although many privately run websites charge a fee to users of their material, a fair number of sites provide their information free of charge. Generally, government and educational sites provide access to state and federal statutes, cases, court rules, and more commonly used legal forms.
When your research reveals on-point authority for a case, you’ll need to tell your supervising attorney and others about it, usually in a written memo. So, you need to know how to cite authority properly in memoranda, briefs, and any document the law firm files with the court or submits to opposing parties. Proper citation format follows a uniform system throughout the legal world. It conveys the minimum information readers need to quickly find a cited case in the law library.
A Uniform System of Citation (also known as The Bluebook) has long been viewed as the official guide to proper citation format. The Bluebook traditionally has been a soft-cover, spiral-bound book that’s literally blue in color. The Bluebook contains citation formats for hundreds of different kinds of materials and abbreviations for hundreds of sources of information. It includes two citation systems, one for official documents and another for informal documents. You should be primarily concerned with learning the format for official documents, so be careful to access the correct quick reference table in The Bluebook.
You can find out more about The Bluebook and see excerpts from its pages at www.legalbluebook.com
.
The Bluebook gives a simple format for citing statutes. Keep the following rules in mind for federal statutes. In the official publication U.S. Code, write the volume number first, then write U.S.C., then the section number, and finally end with the supplement information in parentheses, like this: 42 U.S.C. § 1983 (Supp.III 1979). Avoid citation to the unofficial publication, although A Uniform System of Citation does recognize these styles: 12 U.S.C.A. § 635F (West Supp. 1981) and 8 U.S.C.S. § 43 (Law. Co-op. 1980).
A separate section of A Uniform System of Citation contains the format for citing each state’s statutes. You can easily find the citation format for a specific state by locating the state name in the table of contents and going to the proper page number.
A properly cited case is a joy to behold! It allows the supervising attorney, opposing counsel, or judge reading your memo to quickly access the cited material in the law library. When you cite a case correctly, you provide your reader with the following information:
Konas v. Red Owl, 158 Colo. 29, 404 P.2d 546 (1965)
It states the parties involved in the action (Konas v. Red Owl). It states which court decided the case (the Supreme Court of Colorado). It provides the year the case was decided in (1965). It shows the publications where the case can be found (158 Colo. 29, 404 P.2d 546). Note that the first citation (158 Colo. 29) to the official Colorado Supreme Court reporter (Colorado Reporter) comes first. The first number (158) is the volume number, the next entry (Colo.) is the abbreviated publication name, and the second number (29) is the page number. The citation to the West regional reporters (in this case, Pacific Reporter, 2d, volume 404, page 546, as indicated by 404 P.2d 546) follows, even though most readers might be more likely to access the regional reporter to retrieve the case.
You need to underline or italicize the case name and separate it from the publication information by a comma. Also separate different publications by commas. Finally, put the date of the case in parentheses.