Transcript SAIL INTO SUMMER - Duke University School of Law

PUTTING IT ALL TOGETHER
Research from Start to Finish
“There must
be some law
on this. Write
me a memo.”
Don’t
panic!
You know
more than
you think
you do.
The Research Process is Recursive
Research Process is Recursive
– Get familiar with the problem
– “Pre-research”
• governing law
• substantive area
– Initial search for authorities - preliminary
understanding of legal context
– Refine understanding
– Focus search for authorities, updating, etc.
A little advice – make friends with
your court or firm librarian.

Attend the library
orientation.

Ask about in-house
databases, newsletters
and practitioner
materials on your topic.

ASK QUESTIONS!!
Before you begin Understand the assignment



Get familiar with your
problem
– Listen and take notes
– Read underlying
documents
– Ask questions
Resources – online or
print? Money constraints?
Time Frame?
Before you begin Plan your research

How much time?

Which resources?

Terms of art?

Search queries?
More advice –
Follow good research habits
Get familiar with your problem:
Pre-research analysis
– What general area of law am I dealing
with? Do I know anything about this area?
– Does my workplace have a central
electronic file of memos, briefs, forms,
transactional documents, etc.?
– Is an in-house expert willing to talk with
me?
– Federal law or state law or both? If state
law, what state?
Analyze the Facts

Analyze the facts
(who, what, when,
where, why)

Preliminary Analysis




Inter-relationship between
legal theory and facts
Relief client seeks
Procedure
Make an Outline
Initial Search for Authorities
– May be unnecessary given results of preresearch
• In-house document may explain legal context
• In-house expert may help understand legal
context
– If area is unfamiliar, begin with what you
know & what you have easy access to -
Refine understanding of problem
– Ask more questions in light of initial
research
• Factual questions
• Type of transaction
• “Reality-test” ideas (if you have a sounding
board)
– Scope out further lines of research, e.g.:
• Additional cause of action
• Additional legal theory
More Focused Search
– Itself a recursive/reflexive process
• Use finding tools
• Locate authorities
• Update authorities
• Read authorities
– For substantive content
– To find additional authorities
• Step back to reflect on findings and evaluate
results.
Research Pathways
Familiar area
Unfamiliar area
– Appropriate
secondary source
available
– Appropriate
secondary source
unavailable
Research in a familiar area
• May be an area you are familiar with
through pre-research
• Make sure that you really are familiar
– Factual similarity
– Procedural/transactional similarity
• Begin with known sources in appropriate
hierarchy (const., statute & regs, cases)
• Update
Unfamiliar area?
Start with a Secondary Source
law review articles
encyclopedias
treatises
nutshells
hornbooks
ALR annotations
About Secondary Sources
• Treatises ARE good!
• Distinguish between:
– Secondary sources useful as finding
aids/background
– Secondary sources you can cite.
Start with secondary source – if
you find a statute:
–
–
–
–
–
–
Note effective date
Read text of statute & cross- referenced statutes
Browse surrounding sections & case annotations
Look for references to regulations
Look at TOC for other relevant statutes
Update all sections to make sure you have the
section in effect at relevant point in time
– Use notes of decision to identify and list cases
interpreting relevant statutory language
If you find a statute - continued
• Specifically, you’re looking for:
– Definitional sections
– Sections on construction
– Cases interpreting the statutory language
– References to regulations
– Congressional findings & purpose
Start with secondary source – if
no statute
• Look for cases
– If there is a leading case, read it for further
citations
– Mine it for topics and key numbers
– Double-check with a word search that omits
topics/key numbers
– Shepardize or KeyCite to expand research
– Shepardize or KeyCite to validate (update).
If you start with primary materials
- look for a governing statute
• Use two independent methods
– Index to relevant code (on-line or in print)
– Natural language search
If you start with primary materials
– and no governing statute
• Try West Digests for your jurisdiction
– Descriptive word index search for topic/key
number
– Natural language search
– Reserve terms & connectors search
• For more targeted searching once you have
familiarity with the language used
For special field searching
•
– Then follow same process as when you start
with a secondary source
Three #@%! hours on Westlaw and nothing to
show for it—now what do I do?
 Ask if there are
other sources you
should look at.
 Make sure you
understand the
question.
 “10-minute rule”
Before you go online
 Get background about
your topic and write out
your search.
 Search in the smallest
database possible.
 If you’re having
trouble formulating a
search:
 ask a librarian
 call Wexis – 1-800-
Effective Online Research
• Segment/field search
for precision
searching
• Use Focus (Lexis) &
Locate (Westlaw)
• Email to yourself
• Use the TOC
• Book Browse (Lexis)
• Next / Previous
section (Westlaw)
More Online Tips
• Search the smallest
•
appropriate database
Update with
Shepard’s / KeyCite
to find cases and/or
pending legislation
Which approach is best?
 Secondary sources give you
a coherent picture of the law,
but may not be comprehensive.
 Keyword searches,
digests, annotated codes
are more exhaustive, but don’t
evaluate the material.
 Westlaw & Lexis headnote
are more efficient for finding
cases by issue than by fact
pattern.
 Keyword searches online
are good for finding cases by
fact pattern, but less efficient
for finding cases on procedural
issues, and not always accurate
or complete.
Research process is recursive:
• Get familiar with problem
• “Pre-research”
– governing law, substantive
area
• Initial search for
•
•
preliminary understanding
of legal context
Refine understanding of
problem
More focused search for
authorities, updating, etc.
Am I done yet? Did you?
 Review your assignment
and research plan?
 Consider alternative
theories or lines of
research?
 Look in all important
places?
 secondary sources
 use 2 methods to find
statutes & check an
annotated code
 use 2 case finding methods
 Update primary materials?
 “closure”
DISCUSSION QUESTION
You’re scheduled to meet with your
boss, Shari Partner, to talk about a
new case she wants you to work
on. Ms. Partner has told you that
the case involves the
circumstances under which a
successor corporation can be
held liable for products of its
predecessor in a products
liability case.
You’re clueless, but you want to
make a good impression when you
talk with her. Where would you
look to get some background
about this issue?
1. Under what circumstances can a successor
corporation be held liable for products of its
predecessor in a products liability case?
When you’re not an
expert, start with
secondary sources to get
an overview of the topic
and cites to cases/statutes:




encyclopedias (AmJur
[Lexis & Westlaw], CJS
[Westlaw])
ALR annotations [Westlaw
& Lexis]
books/articles
Treatises and Nutshells
AmJur encyclopedia provides a “general
rule”, a brief overview of the law, and
citations to primary authorities.
ALR is available on Lexis and Westlaw
and in print in the law library.
ALR provides detailed analysis in
selected topics and citations to relevant
cases, statutes and regulations.
Search LegalTrac for journal articles
Search the library catalog for
nutshells and other treatises.
DISCUSSION QUESTION
You’ve been asked to write a
memo on the question of
whether corporal punishment
in public schools violates
students’ constitutional rights.
You remember reading a Supreme
Court case in law school called
Ingraham v. Wright that’s right on
point. How would you find the
Ingraham case and other cases on
the same subject?
2. Find the cite for INGRAHAM v.
WRIGHT.
Westlaw: FIND or
“field” search
Lexis: GET A
DOCUMENT or
“segment” search
Free/inexpensive
websites
“Table of Cases” in
print digest
Free & Low-Cost Legal Research
2. How do you find more cases that address
the same issue as INGRAHAM v. WRIGHT?
Use the features of
Lexis & Westlaw!!!

Westlaw: Topic/key
number search using
headnotes from your case

Lexis: “More Like This”
“Core Terms”
Headnotes (“All” or “More
Like This Headnote”)

Use terminology from a case
to do key word searching
Searching by topic /
keynumber for more
cases.
Searching for more cases on
Lexis.- “more like this”
2. How do you find still more cases that
address the same issue as INGRAHAM v.
WRIGHT?
Use Lexis & Westlaw!!!

Use terminology from a
case to do key word
searching

Look at cases cited in the
case

Shepardize or KeyCite the
case
Limiting by jurisdiction
DISCUSSION QUESTION
Your boss has given you
a brief he’s written and
asks you to find a few
cases that say that there
has to be consideration
for a contract to be valid.
Where would you look?
3. Where would you look for citations to
cases that say there has to be consideration
to make a binding contract?
To find cases that define terms:
Words & Phrases [Westlaw]

If you can’t find a case:

Restatement of Contracts [Lexis
& Westlaw]

Law Dictionary (Black's)
[Westlaw]

Major treatise (e.g., Corbin on
Contracts) [Lexis & Westlaw both
contain selected treatises]
WP stands for
“Words & Phrases”‘
DISCUSSION QUESTION
You’re a research assistant, and you
receive an e-mail from your
professor:
“I’m updating my consumer
protection law casebook. I
need to know which states
allow individuals to sue for
damages for deceptive trade
practices, in which this is a
criminal offense, and where
the state attorney general
can bring a lawsuit.
Please provide the cites and
relevant texts.”
4.
Where do you look to find the statutes
on deceptive trade practices in
all 50 states?
If your first reaction
to a research assignment
is: “OMG, I don’t know
where to begin!”
Your first step should
be to talk to a librarian
4.
Where do you look to find the statutes
on deceptive trade practices in all 50 states?
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LEXIS OR WESTLAW
Westlaw: SURVEYS database
[National Survey of State
Laws]
Lexis: States Legal - U.S. >
Combined States > Find Statutes
& Legislative Materials >
LexisNexis 50 State Surveys,
Legislation & Regulations >>
[topic]

Martindale-Hubbell Digest
of State Laws
[Lexis: MARHUB;MHDIG]


Other Secondary Source:
Subject Compilations of State
Laws, law review articles, etc
check to see if there’s an extra charge
under your plan
OTHER SOURCES
Subject Compilations of State Laws
law review articles
encyclopedias / ALR
DISCUSSION QUESTION
Since you started law school, your
friends and family have been asking
you for legal advice. This time it’s
your grandparents, who have recently
retired and moved to Asheville. They
just bought a new Prius that’s turned
out to be a real lemon. Where would
you look to see if North Carolina law
protects consumers whose new cars
don’t live up to their warranties?
(You’ve checked with your boss, and
been told that you may use any of the
firm’s resources).
5. How do you determine if North
Carolina law protects new car buyers?
Start with a
secondary source!
(e.g., a state legal
encyclopedia)
U.S. STATE MATERIALS > >
NORTH CAROLINA > >
Forms, Treatises, CLEs and Other
Practice Material
ANNOTATED CODES
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Annotated codes
include research
aids and summaries
of cases decided
under the statutes
Lexis
Westlaw
print
ALWAYS UPDATE STATUTES!

Search the public law and
bill databases by key word
or using the cite as a
search query.

Use Shepard’s or KeyCite.

Check pocket parts (or
pamphlets) & advance
sheets for print code.
A little advice – make friends with
your court or firm librarian.

Attend the library
orientation.

Ask about in-house
databases, newsletters
and practitioner
materials on your topic.

ASK QUESTIONS!!