Chapter 1



Chapter 8

Legal Research, Analysis, and Writing

Chapter Overview

1. Introduction

2. Researching Case Law and Finding Relevant Cases

3. Finding and Analyzing Case Law

4. Researching Statutory Law

5. Researching Administrative Law

6. Finding Constitutional Law

7. Updating the Law

8. Legal Writing

Chapter Objectives

After completing this chapter, you will know:

• How to analyze case law and summarize, or brief, cases.

• How federal statutes and regulations are published and the major sources of statutory and administrative law.

• Why finding current law is important and how to verify that your research results are up to date.

• Some important considerations in legal writing and the types of writing tasks undertaken by paralegals.

• How to prepare a legal memorandum.

Chapter Outline

I. INTRODUCTION

A. For many paralegals, legal research is a fascinating part of their jobs.

B. Over 90 percent of paralegals now use the Internet for most of their legal research.

II. RESEARCHING CASE LAW AND FINDING RELEVANT CASES

A. Defining the Issue

1. Examine the facts of the case to determine the legal issues involved.

2. Rarely will just one issue be researched.

B. Determining Your Research Goal

1. Cases on Point—a previous case involving facts and issues similar to the case you are researching. The best is a case on all fours, a case where the parties, circumstances, issues, and remedy sought are very similar to your case.

2. Binding Authorities—any authority that the court must follow in reaching its decision.

a. This can be a statute, regulation, or provision in the Constitution.

b. For a case to be a binding authority, it must:

i. Be on point

ii. Have been decided by a superior court in the same jurisdiction as the trial court.

3. Persuasive Authorities

a. A persuasive authority is not binding on the court.

b. The following are persuasive authorities:

i. Previous court opinions from other jurisdictions

ii. Legal periodicals

iii. Legal encyclopedias

iv. Law dictionaries

C. Primary and Secondary Sources

1. Primary sources include court decisions, statutes enacted by legislative bodies, rules and regulations created by administrative agencies.

2. Secondary sources consist of books and articles that summarize, systematize, compile, or otherwise interpret the law.

3. Legal Encyclopedias—These encyclopedias are valuable because they provide both broad statements of accepted law and footnotes to other legal sources.

4. Case Digests—Case digests are compilations in which brief statements regarding court cases are arranged by subject and subdivided by jurisdiction and court.

5. Annotations: American Law Reports—The American Law Reports (A.L.R.) is a multivolume set that presents the full text of selected cases in numerous areas of the law.

6. Other Secondary Sources:

a. Treatises

i. A treatise is a formal, scholarly work that treats a given subject

systematically and in detail.

ii. Treatises are written by law professors, legal scholars, and

practicing attorneys.

b. Hornbooks—a single-volume scholarly discussion, or treatise, on a

particular legal subject

c. Restatements of the Law—compilations of the common law principles

that are published by the American Law Institute.

d. Legal Periodicals—law reviews and journals may include footnotes that

cite specific cases

III. FINDING AND ANALYZING CASE LAW

A. Finding Case Law—Most state trial court decisions are not published. Except for New York and a few other states that publish select opinions of their trial courts, trial court decisions are filed in the court clerk’s office.

1. State Reporters

a. State appellate court decisions are usually published in both official and unofficial reporters.

b. A few states, including New York and California, publish more than one official state reporter.

c. Many states have eliminated their own official reporters and use West’s National Reporter System.

2. Regional Reporters

a. State appellate court opinions appear in the West Group’s National Reporter System.

b. The National Reporter System divides the states into the following geographical areas:

i. Atlantic—A.

ii. South Eastern—S.E.

iii. South Western—S.W.

iv. North Western—N.W.

v. North Eastern—N.E.

vi. Pacific—P

3. Citation Format—After an appellate decision has been published, it is normally referred to by its citation.

a. There are five parts to a standard citation:

i. Case Name—Smith v. Jones

ii. Volume Number—207

iii. Name of Book

iv. Page number—158

v. Year (1998)

b. A reference to the other reporter or reporters in which the case can be found is known as a parallel citation. The parallel citation is listed after the state’s official reporter, if there is one.

c. The most widely used book on how to cite legal sources is The Bluebook: A Uniform System of Citation.

d. A book that is becoming more popular is the ALWD (Association of Legal Writing Directors and Darby Dickerson) Citation Manual: A Professional System of Citation.

4. Federal Court Decisions

a. Federal trial court opinions are published unofficially in West’s Federal

Supplement (F.Supp.).

b. Opinions from the federal circuit court of appeals are published

unofficially in West’s Federal Reporter (F., F2d, or F3d).

c. Both of these are unofficial reporters. There is no official reporter for

these courts.

5. United States Supreme Court Decisions

a. The United States Reports—This is the official edition of all decisions

of the United States Supreme Court.

b. The Supreme Court Reporter (S.Ct.)

i. The Supreme Court Reporter is an “unofficial reporter.”

ii. The opinion is preceded by a brief syllabus and headnotes with

key numbers.

c. The Lawyers’ Edition of the Supreme Court Reports (L.Ed. or L.Ed.2d)

i. This unofficial edition of the entire series of the Supreme Court

reports contains many decisions not reported in earlier official

volumes.

ii. The Lawyers’ Edition offers research tools and provides

summaries of the briefs presented by counsel.

B. Analyzing Case Law

1. The Components of a Case

a. Case Format

i. Case Title—The title of a case indicates the names of the parties to the lawsuit.

ii. Case Citation—The citation shows the volume and page number where the case is located in a particular case reporter.

iii. Docket Number—The docket number is assigned by the court clerk where the case is initially filed.

iv. Dates Argued and Decided—The date the case was decided is an important component of a case.

v. Syllabus—The syllabus is a brief synopsis of the facts of the case, the issues analyzed by the court, and the court’s conclusion.

vi. Headnotes—Short paragraphs that serve to highlight and summarize specific rules of law mentioned in the case. These also are not a substitute for reading the case.

vii. Names of Counsel—These are the names of the lawyers representing the parties in the case.

viii. Name of Judge or Justice Authoring the Opinion—In some cases, instead of the name of a judge or justice, the decision will be authored per curiam, which means that the opinion is that of the whole court.

ix. Opinion—The formal opinion of the court contains the analysis of the decision of the judge or judges who heard and decided the case.

x. The Court’s Conclusion—In the conclusion, the judges indicate their decision on the issue or issues before the court.

2. Guidelines for Reading Cases

a. Look for Guideposts in the Opinions

i. It may be necessary to reread a case several times to understand what is being said.

ii. Judges often indicate sections and subsections within an opinion by numbers, letters, or subtitles.

b. Distinguish the Court’s Holding from Dicta

i. Only the holding (the legal principle to be drawn from the court’s decision) is binding.

ii. Other views expressed in the opinion are referred to as dicta and are not binding in subsequent cases.

3. Summarizing and Briefing Cases

a. Legal professionals often use an analytical technique called case briefing to reduce the content of the case to its essentials.

b. A typical case brief will contain the case citation, the key facts of the case, the case’s procedural history, a statement of the issue(s) raised in the case, the court’s decision, the court’s reasoning, and the court’s holding.

IV. RESEARCHING STATUTORY LAW

A. Statutory law is a primary source of American law.

B. Statutes are enacted by legislative bodies.

C. Federal Statutes

1. The official compilation of federal statutes is the United States Code or U.S.C.

2. The researcher can find a statute in the U.S.C. through the following methods:

a. Searching through the topical outlines

b. Looking in the index

c. Looking under the act’s popular name in the volume entitled Popular Name Table.

3. Unofficial Versions of the Federal Code

a. The United States Code Annotated (U.S.C.A.)

b. The United States Code Service (U.S.C.S.)

D. State Statutes

1. State codes follow the U.S.C. pattern of arranging statutes by subject.

2. Many states publish annotated codes that provide references to case law, legislative history sources, and other documents in which the statute has been considered or discussed.

E. Analyzing Statutory Law

1. Reading Statutory Law

a. Some statutes are extremely wordy or lengthy or difficult to understand.

b. By carefully reading and rereading a statute, a paralegal can usually determine the reasons for the statute’s enactment and other things inherent in the statute such as:

i. Coverage and effective date

ii. Definitions

iii. Subdivisions

iv. And versus Or

2. Interpreting Statutory Law

a. Previous Judicial Interpretation—Researching statutory law also involves researching case law to see how the courts have interpreted and applied statutory provisions.

b. Legislative Intent

i. Learning the intent of the legislature is helpful in understanding the meaning of a statute.

ii. Sources for reviewing legislative intent are committee reports, The Congressional Record, and other sources of legislative history.

V. RESEARCHING ADMINISTRATIVE LAW

A. The Code of Federal Regulations (C.F.R.) contains all federal administrative agency regulations.

B. Publication of the C.F.R.—The regulations in the C.F.R. are compiled from the Federal Register.

C. Finding Tools for Administrative Law

1. A good place to start researching administrative regulations is in the index section of the C.F.R.’s Index and Finding Aids volume.

2. The Congressional Information Service (C.I.S.) provides an index to the C.F.R., which is helpful in locating regulations by subject matter and in determining the geographical area affected by the regulation.

3. The American Digest System provides coverage of court cases dealing with administrative questions, but does not contain agency rulings.

VI. FINDING CONSTITUTIONAL LAW

A. Constitutions are primary sources of the law.

B. The U.S. Constitution can be found in a number of publications, including the extensively annotated official publication, which is available through the Library of Congress.

C. Annotated versions of state constitutions are also available.

VII. UPDATING THE LAW

A. Case Law

1. Shepard’s Citations contains the most comprehensive system of case citators in the United States.

2. Use Shepard’s to verify the history of a case.

B. Online Citators

1. Online citators enable the researcher to ensure that research results are as up to date as possible.

2. Several computerized legal-research services, such as Westlaw and Lexis, provide online citators.

VIII. LEGAL WRITING

A. Important Considerations in Legal Writing

1. Legal Terminology

a. Write to your audience

b. In letters to a client, avoid using legal terminology that the client may not understand

2. Writing Approach

a. Objective (unbiased) analysis—which either focuses on the facts or presents a balanced discussion of both sides of an issue

b. Persuasive document—where you advocate by presenting facts and issues in the light most favorable to your client

B. Pleadings and Discovery

1. Virtually every document that is submitted to the court must be written persuasively.

2. Such documents must contain the required information and must be written in the proper format.

C. General Legal Correspondence

1. Types of Legal Letters

a. Informative letters—convey information to another party

i. Advising a client about the case

ii. Sent to opposing counsel

iii. Transmittal letter to the Court

b. Confirmation letters—communicate certain information to the reader; confirm a previous verbal communication

c. Opinion (advisory) letters—a letter to the client that has a legal opinion about an issue raised by the client.

i. Provides information and advice

ii. May inform a client about the legal validity of a specific action.

d. Demand letters

i. One party states its legal position and requests that the other party take some action.

ii. Tone is serious and persuasive.

2. General Format for Legal Correspondence

a. Date, Method of Delivery, and Address Block

b. Reference Line and Salutation

c. Body and Closing

D. The Legal Memorandum

1. The legal memorandum is prepared for internal use to provide the attorney with all relevant information using the following format:

a. Heading

i. Contains four pieces of information:

1). Date the memo is submitted

2). For whom the memo was prepared for

3). Who wrote the memo

4). A brief description of the matter discussed

b. Statement of facts

i. Objective description of the relevant facts of the dispute

ii. Logical and concise description of what happened

c. Questions presented

i. The legal issues presented by the facts.

ii. The question(s) are specific and straightforward.

d. Brief conclusion in response to the questions presented

i. Discussion and legal analysis of each issue presented.

ii. Each legal issue is analyzed separately.

iii. Questions to be answered in the memorandum.

e. Discussion and analysis of the facts and applicable law

i. What is the likelihood of success for the claim or defense?

ii. What law supports the strongest position?

iii. Case law or statutory law?

iv. Case law—how similar are the two fact situations to each other?

v. What law is against the client?

vi. What arguments can the other side make?

vii. Response to the other side’s strongest arguments?

viii. Options available to resolve the dispute?

ix. Use the IRAC analysis method: Issue, Rule, Application, Conclusion.

x. Give the proper citations for all the law used.

f. Conclusion

i. Culmination of the legal memo

ii. Your position—your opinion as to how the issues may be resolved

iii. Can make strategic recommendations

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Really? I Have to Research and Use Real Books?

Research is both mechanical and analytical. The process of research can be accomplished by using a checklist that reflects the sources, both primary and secondary, to be consulted. Knowing what each collection represents and how it fits in the research plan is a lofty goal. Know your state’s court system, reporters, statute books, and secondary sources. Know which area of your law library houses these collections. Then follow your checklist.

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