Advanced Legal Research Outline

Transcription

1 Advanced Legal Research Outline Professor: Patrick Charles Text: Washington Legal Research (2d ed. 2009) I. INTRODUCTION A. Rombauer Method 1. Preliminary Analysis a) Relevant Facts b) Words and Phrases c) Issue(s) d) Jurisdiction e) What Do You Know? 2. Search for Statutes 3. Mandatory Precedent 4. Persuasive Precedent 5. Refine, Double Check, Update II. CHAPTER 1: RESEARCH FUNDAMENTALS A. Types of Legal Authority 1. Key Concepts 2. Court Systems a) Washington Courts (1) Trial Courts (2) The Court of Appeals (3) The Supreme Court b) Other State Courts c) Federal Courts B. Research Process Overview 1. Legal Sources a) Citation b) Volume c) Table of Contents d) Index e) Database 2. Text Organization III. CHAPTER 2: Legal Research Tools and Techniques 1 of 20

2 IV. A. Tools 1. Commercial Databases 2. Government and Organization Websites 3. University Websites B. Lexis & Westlaw Fundamentals 1. Beginning 2. Table of Contents 3. Terms and Connectors a) Selecting a Database b) Generating Search Terms c) Constructing a Terms and Connectors Query (1) Boolean Connectors (2) Expanding or Restricting Results (3) Precision Using Segments and Fields 4. Natural Language CHAPTER 3: Secondary Sources A. American Law Reports 1. ALR: 1st 2nd 3rd 4th 5th 6th Fed. Fed. 2nd 2. Each Annotation has: a) Reprint of the opinion b) Essay analyzing the case c) Outline and Index for each essay d) Table of Cases, Laws & Rules (by jurisdiction) e) Research References (using West s Topics & Key Numbers) f) Updated with annual pocket parts 3. ALR Index multi volume set with pocket parts a) Annotation History Table (in each volume) b) Table of Laws, Rules, and Regulations volume B. National & State Legal Encyclopedias 1. Corpus Juris Secundum (C.J.S.) (West) 2. American Jurisprudence 2d (Am. Jur. 2d) (West) a) Available in print, CD, Westlaw and LexisNexis 3. State Legal Encyclopedias a) Bigger states because of money b) California Jurisprudence, Witkin, and Florida Jurisprudence c) Available in print and LexisNexis and Westlaw 4. Updated with annual pocket parts C. Practice Oriented Secondary Sources 1. West s Causes of Action (Formerly Shepard s COA) 2 of 20

3 2. Am. Jur. Trials 3. Proof of Facts (POF) 4. All updated with annual pocket parts D. Treatises 1. Brand Name treatises a) Nimmer on Copyright (Matthew Bender LexisNexis) b) Hazen on Securities Regulation (West) c) Wright & Miller on Federal Practice & Procedure (West) d) Areeda & Turner on Antitrust Law (Wolters Kluwer) 2. Scholars in the area of law 3. Contain lots of footnotes & endnotes 4. Available in print and online 5. Updating variety of format in print a) Pocket parts b) Looseleaf pages c) Softbound volumes d) New editions 6. How to E. Types of Legal Periodicals 1. Academic law reviews & journals 2. Special interest journals 3. Bar association journals 4. Commercial legal newspapers 5. Legal newsletters F. Indexes & Full Text 1. Indexes a) Print (1) Index to Legal Periodicals & Books (1908 present) (2) Current Law Index (CLI) (1980 Present) b) Online (1) LegalTrac G. Updating 1. Pocket Parts a) Pay attention to date 2. Annual Editions a) Format changes, 3. Free Standing Supplement a) Free standing supplement when pocket part gets too big 4. Looseleaf Pages 3 of 20

4 5. Semi Annual Cumulative Supplement a) Fall & Spring editions H. Call Number System 1. Developed by library of Congress a) K = Law b) KF = American Law c) KF801 = Contracts d) KFW = Washington I. Chester 1. Does not include full text documents 2. Does include a) author b) subject headings c) ISBN number d) publication year e) edition number f) other information V. CHAPTER 4: Statutes, Constitutions, and Court Rules A. Statutes & Statutory Research Things to Know 1. Publication Pattern & Codification Process for Statutes 2. Print & Electronic Sources Structure 3. Print vs. Online for Statutory Research 4. Tracing the History of Statutes 5. Updating Statutes 6. Archived Statutory Code B. Print Publication Pattern 1. Slip Laws: Chronological Pamphlets a) Federal Public Laws (Pub. L. No ) b) Washington Chapters (Ch. 347) 2. Session Laws: Chronological Volumes a) Federal Statutes at Large (111 Stat. 788) b) Washington Session Laws Laws of Washington (1997 Wash. Sess. Laws 353) 3. Codification: Subject arrangement a) Federal United States Code (26 U.S.C. Section 221 (2006)) (1) United States Code (U.S.C.) (a) Official (b) Unannotated (c) Released every 6 years 4 of 20

5 (d) Really Slow in publishing (e) Supplemented annually (2) United States Code Annotated (U.S.C.A) (West) (a) Unofficial (b) Annotated (c) Cross reference cases, and regulations (d) Cross reference secondary sources (e) Topic & Key Numbers (3) United States Code Service (U.S.C.S.) (a) Unofficial (b) Annotated (c) Cross reference cases, and regulations (d) Cross reference secondary sources b) Washington Revised Code of Washington (R.C.W. Section (1998)) (1) Revised Code of Washington Annotated (R.C.W.A.)(West) (a) Copious annotations (2) Annotated Revised Code of Washington (A.R.C.W)(Lexis) (a) Selective annotations C. Federal Session Laws 1. Statutes at Large (Stat.) Official 2. Online a) WestNext b) Lexis Advance c) HeinOnline d) Proquest e) 3. Print vs Online a) Print provides context b) Organization & structure of complex statutes (1) Table of Contents for Title (2) Surrounding sections: Ex. Definitions in the general section, definitions in specific sections c) Online: Risk of missing relevant sections d) Use both print & online appropriately D. Federal Statutes Online 1. WestlawNext 2. LexisAdvance 3. US House of Representatives Office of the Law Revision Counsel 5 of 20

6 VI. 4. FDsys 5. Congress.Gov: 6. Cornell s Legal Information Institute E. Source Notes for U.S.C. 1. Source Note for 7 U.S.C. Section Source Note for 2 U.S.C. Section 439a F. Source Note for Revised Code of Washington Annotated 1. CREDIT(S) 2. First passed shows last 3. Derivation: former laws where the conduct may have previously been regulated G. Remington s Revised Statutes (R.R.S.): code prior to current code H. Archived Codes 1. LLMC Digital CHAPTER 5: Judicial Opinions and Reporters A. Publication Pattern 1. Slip Opinions 2. Advance Sheets 3. Reporters softbound, temporary 4. Digests hardbound, permanent B. West s National Reporter System 1. Appellate Case Regional Reporters a) Atlantic b) Pacific c) North Western d) South Eastern e) South Western f) North Eastern g) Southern h) New York i) California 2. Federal Case Law a) US District Courts Federal Supplement (1932) (1) Decision to publish is made by judge b) US Courts of Appeal Federal Reporter (1880) (1) Criteria for publication is in Circuit Court Rules c) Supreme Court Reporter 3. Topical Reporters a) Bankruptcy b) Military Justice 6 of 20

7 VII. VIII. c) Federal Claims d) Education Law e) Federal Rules f) Veterans Appeals 4. Unpublished Opinions a) 84% Federal Appellate Cases Unpublished b) FRAP 32.1 can cite but no precedential value c) WA Rule 14.1 not allowed to cite 5. Digests a) Organized cases by topic and key number b) Structure to Complex Legal Concepts c) Outline of the Law (1) Persons (2) Property (3) Contracts (4) Torts (5) Crimes (6) Remedies (7) Government d) State Digests for every state except (1) Utah (2) Nevada (3) Delaware e) Regional Digests (1) Southeast (2) Northwest (3) Pacific (4) Atlantic CHAPTER 6: Digests and Other Case Finding Tools CHAPTER 7: Citators A. History of Citators 1. Print Citators: Shepard s in print 2. Electronic Citators a) Shepard s on Lexis Advance b) KeyCite on WestlawNext B. Updating Case Law with Citators 1. Validation: to ensure the case is still good law 2. Research: to find cases and other sources that have cited your case C. Role of Citators 7 of 20

8 1. Trace the history of a case: prior and subsequent history 2. Describe how courts have treated the case 3. Help to find secondary sources that mention the case 4. Determined if a statute has been amended or repealed 5. Locate cases that interpret a statute D. History v. Treatment 1. History: refers to the procedural progress of your case through the appellate courts. The litigation chain of your case. 2. Treatment: refers to teh way in which your case is used as authority in subsequent cases E. Direct Procedural History 1. Reversed a) This happens to a case when it is appealed to a higher court and the lower court is ruled to be incorrect in its decision b) It is an example of the direct history of your case 2. Affirmed a) When the same case is affirmed on appeal to a higher level court 3. Modified a) When the lower court s decision is changed in some way 4. Vacated a) When the opinion has been rendered void and is no longer of precedential value 5. Overruled a) This happens to a case later in time well after the decision in your case. It happens in the context of another case b) It is an example of the later treatment of your case 6. Criticized a) The court is disagreeing with the soundness of your case s decision, although the court may not be able to affect its precedential value 7. Distinguished a) The case is different from your case in significant aspects 8. Explained a) The court is interpreting your case in a significant way 9. Followed a) Your case is being relied upon as controlling or persuasive authority F. Major Electonic Citators 1. Shepard s: it has been around for over 100 years; available in print and on Lexis Advance 2. KeyCite: West s response to the acquisition of Shepard s in late 1990s by 8 of 20

9 IX. LexisNexis; available only on WestlawNext G. Organization of KeyCite 1. Filings 2. Negative Treatment 3. History 4. Citing References 5. Table of Authorities H. Organization of Shepard s on Lexis Advance 1. History 2. Citation Decisions a) From within the case s jurisdiction b) From outside of the case s jurisdiction 3. Citing Law Reviews, Treatises a) Secondary sources b) Statutes 4. Table of Authorities CHAPTER 8: Administrative Law A. Agency Functions 1. Rulemaking promulgate rules which have the same force as statutory law (regulatory actions). a) More than 8,000 rules created each year by approximately 160 agencies. As many as 500 regulations open for comment at any given time. 2. Enforcement enforce those rules by investigation 3. Adjudication act in a quasi judicial capacity. B. General Principles 1. Know the Agency a) Find a list of federal agencies online b) U.S. Government Manual 2. Know the underlying legislation (that created teh agency or granted powers to regulate) 3. Know the agency resources a) Call or e mail the agency about their rules b) Check out the agency s website C. Types of Administrative Law 1. Rules/regulations similar to statutes 2. Decisions of Administrative Courts 3. Executive Orders & Proclamations a) Order: substantive 9 of 20

10 b) Proclamation: foo foo D. Rulemaking 1. Agencies are established by Congress with an enabling statute 2. An agency s power to regulate is also granted by Congress. E. Notice & Comment in Rulemaking 1. Notice of a new or amended regulation is published in the Federal Register 2. The proposed regulation is published in the Federal Register. 3. Public comment is invited 4. The final regulation is published in the Federal Register 5. The final regulation is codified and published in the Code of Federal Regulations (CFR) F. Federal Register 1. All new regulations must be published here. 2. Issued chronologically 3. Published every business day, except federal holidays 4. All daily issues for a calendar year constitute a single volume; it is consecutively paginated throughout the year. 5. Contains proposed rules, interim rules, final rules, notices, executive documents, finding aids and other materials. 6. Typical issue is over 225 pages long 7. Most recent annual volumes (one complete year) of the Federal Register exceed 70,000 pages in length. G. Code of Federal Regulations 1. Regulations published chronologically in the Federal Register are codified in the Code of Federal Regulations 2. Analogous to the relationship between the Statutes at Large and the USC 3. Contatins only final rules and regulations titles representing broad areas 5. Each title is divided into chapters H. Authority Note & Source Note in the CFR 1. At the beginning of each CFR part is an authority note showing the statutory authority from the USC under which the regulations have been issued. 2. After this note, and/or at the end of each section, is a source note providing the citation and date of the Federal Register in which the regulation was first published I. Intent 1. Legislative History of regulations 2. Federal Register usually includes a) Agency s rationale for promulgating regulations 10 of 20

11 b) Summaries of public comments 3. These are not included in the CFR a) Printed with final rule or regulation in the Federal Register J. Updating: note the currency of the titles 1. Volumes of the CFR are revised once a year on a quarterly basis: a) Titles 1 16 are current through January 1 b) Titles are current through April 1 c) Titles are current through July 1 d) Titles are current through October 1 2. Each year s cover is different for quick reference 3. UPDATING: List of Sections Affected (LSA) a) The CFR is keyed to and kept current by the daily Federal Register. These two publications must be used together to determine the latest version of any given rule (1) Published monthly, cumulates annually (2) Cumulative lists are also 4. Finding and Updating Online a) Commercial Sources (1) WestlawNext (a) CFR 1984 Current (b) Federal Register 1936 Current (2) LexisAdvnce (a) CFR 1981 (b) Federal Register 1980 (3) HeinOnline (a) CFr Executive Materials a) Executive Orders usually involve an exercise of presidential authority b) Executive Proclamations 6. Locating Executive Materials a) Print b) Online (1) WestlawNext (2) LexisNexis (3) HeinOnline (4) FDsys Public Papers of President (5) FDsys Compilation of Presidential Documents (6) American Presidency Project archive from UC Santa Barbara 7. Agency Decisions 11 of 20

12 a) Judicial Review of Administrative Decisions (1) Federal Courts can review admin decisions 8. Sources of Official Agency Decisions a) Online through agency website b) Unofficial publications (1) Westlaw, LexisNexis, HeinOnline c) Official publications from GPO (1) Not always timely (2) Can be hard to find 9. State Administrative Law a) States produce administrative law just like the federal government does b) While it may not be as comprehensive it works pretty much the same way c) Unfortunately, it can be more obscure and harder to locate. 10. Washington State a) RCW b) Published in the Washington State Register and codified in the WAC c) Print (1) WAC (2) Washington State Register d) Internet (1) Washington State Legislature website with links to current WAC and Washington State REgister (2) MRSC (3) Agency Website (4) LexisAdvance (5) WestlawNext X. CHAPTER 9: Legislative History A. Purpose: searching for legislative intent, why did congress use the words that they did 1. Interpret statutory language a) Unclear or ambiguous statutory language 2. Ascertain intent of the legislature 3. Evidence that a statute should be interpreted in your favor B. Definition: the path taken by a bill as it progresses through the legislative process and the documents that track that process C. Debate 1. Narrow reading limits the application of statute 2. Broad reading can result in manipulation 3. Tension between legislative and judicial branch 12 of 20

13 D. Scalia s Views 1. Lacks legitimacy because it is not the law itself 2. Difficult to determine true legislative intent 3. Susceptible to manipulation 4. Judges can create intent E. Breyer s Views 1. May be used but only in certain situations 2. Five Situations a) Avoid an absurd result b) Correct drafting errors c) Identify specialized meanings d) Identify the reasonable purpose of the statute e) Choose among reasonable interpretations of a politically controversial statute F. Process 1. House a) House Committee b) Floor of House c) Vote in House 2. Senate a) Hearings and Reports b) Senate vote 3. President a) OR Conference Committee G. Federal Legislative History 1. Bill Various versions 2. Committee Prints research reports prepared by committee staff 3. Hearings Witnesses oral/written statements, committee Q & A 4. Committee Reports Description & Analysis, findings & recommendations 5. Floor Debates & Proceedings 6. Conference Reports 7. White House president may release a signing statement H. State Legislative History 1. Plain Meaning Doctrine requires finding of ambiguity in statute 2. States Vary Widely allow everything to nothing a) Alaska: ambiguity not required b) California: list of acceptable documents c) Oklahoma: legislature exempted itself from disclosure requirement d) Washington: ambiguity is required 13 of 20

14 XI. e) Federal: ambiguity required 3. Washington Bill a) Introduced first reading b) Referred to committee c) Committee holds hearings d) Committee recommends action e) Referred to rules committee f) Second reading debate on merits g) Third reading roll call vote on final passage h) Sent to second chamber of legislature i) To governor 4. Resources a) Print Limited (1) RCW, RCWA, or ARCW (2) Laws of Washington sesssion laws (3) Senate Journal and House Journal b) Online Comprehensive (1) State Legislature s Website (2) WestlawNext (3) Lexis Advance (somewhat difficult) I. Research 1. Two Steps a) Compiling all the documents b) Reading and finding legislative intent in documents 2. Know your jurisdiction s philosophy a) Judge b) State 3. Not all evidence is of equal value a) Type of document (Conference Report v. Hearings) b) Author / Speaker / Motive J. Sources of Compiled Legislative Histories CHAPTER 10: Strategies and Organizing Results A. Keyword Searching 1. Cost Effective Online Research a) Goals (1) Save time & money (2) Avoid frustration (3) Organize research b) What you need to know 14 of 20

15 (1) Terms of contract (2) Structure of databases (3) Search conventions of database (4) How to construct & modify searches (5) How to plan your research strategy 2. Rate Structures a) Your contract determines the best way to search: (1) Choice of database/source (2) Importance of planning before log on (3) How to modify / narrow searches (4) Printing / downloading documents b) Caveat: This is changing as we speak (1) Lexis Advance and WestlawNext c) Transactional (1) Charged per search, varies by database (a) ALLCASES = $172/search (2) Choice of database(s) is important (3) Time doesn t matter (usually) (4) Modifying and re running a search counts as 2 searches (5) Use free tools to narrow results (a) Locate and Focus d) Hourly/Minute (1) Rates vary by database (a) ALLCASES = $17.66/min or $1,059.60/hr (2) Choice of database (3) Time matters construct search first (4) Know how to print/download/e mail before you go online (a) Format, cite list, extra charges e) Flat Fee (1) Annual fee based on number of users (2) Know what databases are included in contract (a) If not included, know if its transactional or hourly (3) Renewal rates are based on usage (4) Your statistics will be recorded and reviewed f) WestlawNext & Lexis Advance (1) Search results include content not included in your contract (2) Chargeable events (a) Searching (b) Viewing 15 of 20

16 (c) Offline delivery (printing, downloading, e mailing) (3) Transactional (4) Hourly/Minute g) Other Charges (1) KeyCite (2) Images (3) Communications (4) Browsing h) Database Structure (1) Know exactly what you re searching (a) Organization (b) Scope (c) Coverage (d) Identifying i) Databases/Sources (a) Westlaw Classic: ALLCASES & WestlawNext: Cases (b) LexisNexis Classic: Legal > Cases U.S. > Federal & State Cases, Combined & Lexis Advance: Cases (2) Documents (i) Cases (ii) Statutes (iii) Treatises (b) Fields (i) Case Name (ii) Docket Number j) Selecting Database/Source (1) Choose the smallest database/source appropriate for your search (a) More precise Fewer irrelevant hits (b) Less expensive (2) Finding databases (a) Print directories Obsolete (b) Online directories (3) Coverage (4) Currentness k) WestlawNext (1) Default Directory Display (2) Find a database (3) Scope 16 of 20

17 XII. (a) Summary scope, billing (b) Contents (c) Citation Formats & Parallel Cites (d) Searching & Fields l) Lexis Advance (1) Search Tab By Source 3. ITAC Method a) Issue Write down a simple issue statement b) Terms Circle the key terms in issue statement c) Alternative Terms Think of synonyms for the key terms d) Connectors Plug in connectors with terms and alternative terms 4. Connectors a) /p WIthin the same paragraph b) /s Within the same sentence c) /n Within n words d) +p e) +s f) +n g) AND h) OR Synonyms i) Asterisk * universal character (wild card) replaces one letter j) Exclamation! root expander k) Quotation marks phrase search 5. Field/Segment Restrictions a) Limit search to discrete sections (fields/segments) of document b) TI(title) c) AU(author) d) JU(judge) e) Sy,DI(synopsis,digest) f) LN SUMMARY(LexisNexis summary) Municipal Code A. Weekly Resources 1. Website: MRSC.org 2. McQuillin Treatise on Municipal Law a) Bible on municipal law b) Single volume index c) Updated with pocket part 3. Uniform Laws Annotated a) Published by West 17 of 20

18 b) Acts as a 50 state survey on uniform laws 4. A Century of Service 5. JVR Personal Injury Valuation Handbook B. Washington Court Rules Print 1. Lexis Washington Court Rules Annotated a) State Rules 2. West s Washington Court Rules a) Annotated (1) State Rules b) Unannotated 3 volume set (1) State rules (2) Local rules (3) Federal rules C. Federal Court Rules 1. Print a) Miller Wright Treatise (West) b) Moore s Federal Practice (Lexis) 2. Electronic a) D. Washington Pattern Jury Instructions 1. Used by courts in jury trials to charge the jury 2. Print a) West s Washington Practice 3. Electronic a) Washington Court s Website through Westlaw b) WestlawNext E. Forms 1. General Forms 2. Litigation Oriented Forms 3. Generic Forms & Jurisdiction Specific Forms 4. Print 5. Electronic F. Washington Forms 1. West s Washington Practice 2. Washington Lawyers Practice Manual 3. Washington Form Finder on WestlawNext 4. WSBA Deskbooks Forms on CD G. Jury Verdicts & Settlement Information 1. Format 18 of 20

19 a) Print b) Electronic 2. Jurisdiction a) State b) Federal c) Washington 3. Subject Specific a) Employment b) Personal Injury 4. Washington a) West s Personal Injury Valuation Handbook b) Jury Verdicts Northwest 5. Jury Verdict and Settlements on LexisAdvance a) Charts & Graphs H. Uniform Laws & Model Acts 1. Uniform Laws Commission formerly National Conference of Commissioners on Uniform Laws 2. Uniform Laws a) Uniform Laws are for the purpose of promoting uniformity in state laws on all subjects where uniformity is deemed desirable and practicable 3. Model Acts a) Model acts are poposed laws on topics where reform, not uniformity, is the dominant aim. Those creating model acts contemplate that state legislatures may make alterations or even 4. Uniform Laws Annotated on WestlawNext 5. Uniform Laws Commission Website I. Municipal Research 1. Local legislation similar to statutes 2. City Council or County Commissioners 3. Publication Pattern a) Ordinance (chronological) b) Codification (subject arrangement) 4. Print Online a) Trend toward putting online 5. MRCP.org 6. Municipal Code Corporation (available free online) 7. Chester Terms 19 of 20

20 results Location & Call Number Pull Book Search Index Find Page Northern District FE36020.Request for Admission Pro Hac Vice (to be attached to Motion for Admission Pro Hac Vice) (AT 05), Westlaw eforms: Federal Courts and Agencies FE of 20