the keys to the kingdom

Transcription

1 V O L U M E II part 1 Fundamentals of Research & Writing the keys to the kingdom Legal analysis is the application of the law to a given set of facts. This analysis is most often found in legal writings, by both the parties and by the court itself. To find the applicable law to the given set of facts, we engage in legal research. When researching, the goal is first and foremost to find all relevant authority. Authority is anything the court can, or must, use in reaching its decision. The truly good researcher is not a crusader for the client in the library, but instead searches for applicable law to the client s situation, good or bad. While an internal, or interoffice, memorandum applies the law in an objective manner, an external memorandum or brief applies any authority cited to the advantage of the client, minimizing the damaging points of damaging authority, and maximizing the favorable points of favorable authority. The goal of this chapter is to introduce the student to the concept of legal analysis, proper analytical form, and to use these skills when preparing an interoffice memorandum. In addition, the student will begin developing skills related to legal research. These skills will include: proper utilization of indexes, research within legal encyclopedias, and how to find cases and statutes in a law library. As the student takes these first steps in legal writing and legal research, it will be helpful to know that there are some basic concepts and systems that should be followed, and that, in fact, make your job easier. First, accept the fact that what you think doesn t matter at all! The only thing that matters in legal writing and legal research is what the law is. In addition, when creating a legal document, don t use your own, individual style of writing. You must use the analytical system that you will be taught. In fact, it makes writing easier because all you have to do is follow each step of the system. By following Part 1 Chapters: 1. Authority: Fundamentals 2. Research: Fundamentals 3. Writing: Fundamentals Assignments Law Library: Case Law 1.4 Law Library: Statutes 1.6 Law Library: Scavenger Hunt 2.8 Law Library: Words & Phrases 2.9 Law Library: Am. Jur. 2d 2.10 Law Library: C.J.S Interoffice Memo 3.15 Other Assignment:. 1C

2 these guidelines, and accepting them, the result will be a document that relies upon authority instead of personal opinion, and a document that anticipates, or argues, what the ultimate result of the court will be, based upon that authority. Open your mind. When talking about the law, the rules of writing and research are different. Legal Junk Food Q. Doctor, before you performed the autopsy, did you check for a pulse? A. No. Q. Did you check for blood pressure? A. No. Q. Di d you check for breathing? A. No. Q. So, then it is possible that the patient was alive when you began the autopsy? A. No. Q. How can you be so sure, Doctor? A. Because his brain was sitting on my desk in a jar. Q. But could the patient have still been alive, nevertheless? A. Yes, it is possible that he could have been alive and practising law somewhere. authority The court, in making its decision, relies on cases, statutes, regulations, even articles and commentary by private individuals. Whatever it is that the court is relying on, it is called authority. As we will see, there are different kinds of author ity: primary, secondary, mandatory, persuasive, and non-authority. In this chapter, we will con centrate on identifying primary, secondary, and non-authority. Understanding these stepping stones of authority will make the remainder of this Segment more productive. We will discuss more advanced applications of authority, including identifying mandatory and persuasive author ity, in a later chapter. citations In order to eventually refer to an authority, one must be able to provide a legal address. In this chapter, we will provide the foundations for case law an d st at u t o r y cit at io n fo r m, u sin g t h e Uniform System of Citation, often referred to as Bluebook form. analysis Legal analysis is the application of any form of law to a specific set of facts. There is a very quantifiable system of analysis. The beauty of the system is that, once understood, the job of the author is actually made easier, and the resulting analysis more powerful and convincing. The system is referred to as IRAC, and every lawyer learns it in law school. 2 Essential Skills for Paralegals: Volume II

3 These three skills eventually work together: in any analysis, the paralegal provides citations to the authority being cited. PART 1 OBJECTIVES Primary and Secondary Authority Students should be able to identify the differences between primary and secondary authority, and what distinguishes official from unofficial authority. Correspondence Learn to create a demand letter and basic client correspondence. Legal Analysis It is critical that a paralegal understand the process and structure of legal analysis. Legal Memorandum Form Paralegals need to communicate with the attorney using memorandum form, often incorporating analytical skills. Index Research The foundation of all legal research is the ability to use indexes. From the concept of cartwheeling to the basic hierarchical structure of legal indexes, paralegals need to efficiently utilize these fundamental research tools. Breaking Rules Into Elements Students will be taught how to break a rule of law, the hearsay rule, into elements in order to properly apply them to factual situations. 3C

4 electronic research Alternate Online Research Assignments Students who have access to a law library should use the exercises in this manual to become familiar with the hard copy version of the authorities presented here. For those students using this manual for an online program, it is recommended that you attempt to locate a law library in your vacinity to complete the research exercises found in this manual. If that is not possible, you may still learn about the materials and information presented by using the following: - How to Use the Law Library Tool (If available to you) This powerful tool is found on the Support page of the ParaStudent Website. It provides a hands-on online introduction to dozens of legal research sources. - Electronic Research Sources, such as LexisNexis or WestLaw This manual will make reference to online electronic research tools as an alternative for the law library experience. Students should note that this manual will concentrate on LexisNexis Electronic research, and thus if the student is using another online research system (such as WestLaw or VersusLaw), students will need to be flexible and explore those systems. If your program provides you with access to the above tools, you will be able to become a very good researcher even without law library access.to help facilitate the legal research experience for those without access to a law library, this manual will provide alternate exercises and assignments designed to enhance your online research skills. Simply look for the Alternate Online Research notices that correspond with each research assignment. For those who have access to a law library, feel free to also utilize the alternate online exercises after conducting the hard copy research. In any case, electronic research is covered in depth later in this manual. 4 Essential Skills for Paralegals: Volume II

5 chapter 1 The Fundamentals of Authority 1.1 WHAT IS AUTHORITY? Authority is anything the court can or must use in reaching its decision. To be a competent researcher, knowing how to find cases, statutes, and other legal materials is not enough. The lawyer or paralegal must also anticipate whether the court will be persuaded by the material. To determine this, the researcher must initially be able to identify two things: Is the authority law or non-law? (primary or secondary) If it is law, what weight will it carry? (mandatory or persuasive) Primary/Secondary Understanding the difference between primary and secondary authority is fairly simple. If the authority is law, it is primary. If the authority is not law, it is secondary. Primary Authority Any form of law is considered primary authority. Example: A statute, case, constitution, or any other form of law. Secondary Authority Secondary authority is non-law. Example: A comment from a legal encyclopedia. Mandatory/Persuasive Determining what weight the authority carries is equally important. If the material is from a higher authority than the court in which your client s case is being heard, and within the court s jurisdiction, it is mandatory. In other words, the court must follow the material the researcher has located unless it is established that the law has been superceded or has 5C

6 A rule protective of law-abiding citizens is not apt to flourish where its advocates are usually criminals. William O. Douglas 6 Essential Skills for Paralegals: Volume II been declared unconstitutional. If the material is from the same level court or lower, that material is persuasive, and the court can choose whether to follow the authority or not. Mandatory Authority The researcher is always looking for mandatory authority. In theory, the court must follow such authority. Example: A case you found in the law library that came from a higher court in the appropriate jurisdiction. Persuasive Authority While the researcher always looks for mandatory authority, it is usually persuasive authority that is found, which the court is not required to follow. Example: A case from the same level of court, or a case from a different jurisdiction. Stare Decisis and Persuasive Authority Stare Decisis is a doctrine that holds that a court s previous decision should be followed unless there is a compelling reason not to do so. Although a court is not required to follow a previous ruling by the same level court, it will do so unless a compelling reason has been provided. Non-authority If authority is anything the court can or must use in reaching its decision, then non-authority is anything the court would never use in reaching its decision, such as a case that had been overturned. Example: A case that has been reversed by a higher court. A statute that has been superceded. A research book that is used as an index, or that could never be quoted. In this chapter we will discuss the identification of primary, secondary, and non-authority.

7 1.2 PRIMARY AUTHORITY There are many kinds of laws. Each of which serves a purpose. Some can supercede others. Following is an introduction to the 10 kinds of law in the rough order of supremacy. Constitution The highest form of law. The fundamental law that establishes the basic rights and obligations of citizens, and creates the branches of government. The U.S. Constitution is the highest law in the country. In addition, states have their own individual constitutions. Statutes Laws created by the legislative branch of government. For instance, the U.S. Congress creates federal statutes contained in the United States Code (U.S.C.). State legislatures create statutes for their own states. Statutes are enacted law. Enacted law supercedes common law. Opinions An opinion is a decision of the court applying law to specific factual situations. An opinion is often referred to as a case or case law. For example, the case of Roe v. Wade is an opinion of the court that applied what the court deemed was a Constitutional right for a woman to obtain an abortion. Opinions are common law. Treaties An agreement between two or more governments. The President signs treaties, with the consent of the Senate. For example, the Strategic Arms Limitation Treaty (SALT) was negotiated by the United States and the Soviet Union, but needed to be confirmed by the U.S. Senate before it could become law. Executive Orders A law created by the highest entity of the executive branch, such as the President or Governor. An example of an executive order is a pardon of someone convicted of a crime. 7C

8 A lawyer should never ask a witness on cross-examination a question unless in the first place he knew what the answer would be, or in the second place he didn t care. David Graham Which of the following are primary authority? a case a statute an ordinance an index a dictionary the SALT Treaty Colo. Rev. Stat an encyclopedia a Presidential Pardon an administrative rule a city charter Roe v. Wade U.S. Constitution Kansas Constitution a court opinion an executive order Administrative Rules Rules and regulations created by state and federal administrative agencies. For instance, the Federal Aviation Administration (FAA) creates rules governing air traffic throughout the country. Administrative Decisions Decisions by administrative agencies applying administrative rules to factual situations. For example, the FAA can fine a person for making a joke about a bomb in an airport. After a hearing, the agency would issue a report detailing its decision. Rules of Court Rules that govern the procedures of state and federal trial process. Court rules are created by the legislature, and/or the highest court in the state. For instance, the Federal Rules of Civil Procedure are the court rules for civil federal trials. Charters The local equivalent of a constitution. Charters are the basic and fundamental law of a local government; they establish the structure of the local government in that jurisdiction. Ordinances The local equivalent of a statute. Ordinances are rules that members of the community are expected to follow. If a person fails to cut his or her lawn, he or she is most likely violating an ordinance. The researchers first goal is to locate primary authority. The researcher may utilize secondary or non-authority to get there, but law is almost always the focus of research. 8 Essential Skills for Paralegals: Volume II

9 1.3 USING CITATIONS TO LOCATE AUTHORITY In order to utilize authority, a researcher or author of a legal document must be able to locate and refer to that authority. This is done through citations. A citation is a legal address. In the following pages, students will be asked to locate various citations in a law library. In later chapters, students will be taught the form of a legal memorandum, and will learn the system of basic legal analysis. Thus, authority, research, and writing are ultimately linked. authority Before a researcher steps foot in a law library, he or she must understand what the books contain, and what the basic function of those law books are. For instance, secondary authority (non-law) is used mainly to locate and explain primary authority (law). research Encyclopedias are an excellent example of secondary authority. The purpose of a legal encyclopedia is to provide a basic explanation of most areas of the law. In addition, encyclopedias, as with most forms of secondary authority, provide citations that lead the researcher to the actual law (such as cases or statutes). It is the law that is usually quoted or relied upon in making a legal argument. writing Once the researcher has identified various authorities that are relevant to the legal matter in question, he or she should refer to those authorities in a legal writing, such as a brief or motion. As we will see later, briefs are documents that attempt to persuade the court to rule in favor of one side or the other. The court doesn t care what the attorney or paralegal thinks. It is obviously more likely to pay attention to a statute, or a court opinion. This is why we want to rely on primary authority in legal writing. Legal Junk Food COUNSEL The respiratory arrest means no breathing, doesn t it? WITNESS That s right. COUNSEL And in every case where there is a death, isn t there no breathing? 9C