LEGAL RESEARCH

CHAPTER 1 AN INTRODUCTION TO LEGAL RESEARCH

1. Legal authority

Any published source of law setting forth legal rules, legal doctrine, or legal reasoning that can be used as a basis for legal decisions.

Primary and secondary authority

2. Primary authority

Includes authorized statements of the law by governmental institutions.

They include case law, statutory law (including administrative agency regulations) and constitutional provisions.

They are >the horse=s mouth= and can be cited in support of an argument.

3. Secondary authority

Includes any writings which serve to explain or interpret primary authority.

They include encyclopedias, books, articles about the law.

They should not be cited in support of an argument. They should reference the primary authority that can be cited.

4. Mandatory and persuasive authority

Primary authority which must be followed includes constitutional provisions, cases and statutes from your jurisdiction (or which apply to your jurisdiction.

Cases and statutes from other jurisdictions are not binding but can be argued as logical in support of your position (provided there is not mandatory authority against you).

5. The common law tradition

Common law is the body of law that originated in England and which was brought to the United States by the colonists.

It has been described as the >unwritten law,= having been handed down from generation to generation by custom and was eventually included in judicial decisions.

49 states still rely on the common law, but have incorporated almost all of it into statutory form. Many common law principles still survive.

6. Civil law tradition

The civil law tradition, on the other hand, looks to statutes which are presumed to provide all the rules for the various legal issues. The common law tradition includes the unwritten principles as part of the overall set of rules.

7. Statutes

Statutes began to cover situations which had not been covered by court decisions. They therefore fill in necessary areas and also cover new ground as our society evolves.

They can follow and modify court decisions in areas where they disagree with the courts or in reponse to constitutional problems the courts have dealt with.

Case law and the doctrine of precedent

8. Stare decisis

Ato stand on what has been decided@

This means that, once a decision has been reached, the principle of that decision is binding on future decisions of that court and lower courts within that system.

Courts on the same level cannot bind each other, however.

9. Ratio decidendi

The rule of the case. It is the holding or principle of law on which the case was decided. It is what has to be followed in later cases. It must be looked at in conjunction with the facts of the case.

Courts don=t simply issue rules. They only deal with actual cases and the rules they do set out must be seen in relation to the facts from which they come. Cases which involve different factual scenarios are often distinguished from the ruling of an earlier case.

10. Obiter dictum (dicta)

Asaid by the way@ - a statement in a court decision that is not needed for the decision and is therefore not binding on future cases.

Precedent provides stability in the law. It is not in cement, however, and when a major change occurs, the case is often described as a landmark decision.

11. Interpretation of statutes

Statutes will be interpreted first by the plain meaning of the language therein.

Cases often interpret statutes which have terms that are ambiguous (ie..dwelling, nighttime). Cases therefore >fine tune= the meaning of a statute as well as apply the rule of the statute to the factual situation of the case before it.

Courts also may look at the legislative history of the statute to find a deeper understanding of the words that were used.

12. Sources of law (summary)

Federal and state constitutions

Federal and state statutes

Federal and state cases

Common law

CHAPTER 2 THE LEGAL RESEARCH PROCESS

13. No single way to research

A knowledge of alternative research tools is necessary because the sources you want may not be available at your library.

14. TARP

A system of factual analysis. You must formulate the legal issues to be researched.

Look at your facts in relation to:

T - Thing or subject matter

A - Cause of action or ground of defense

R - Relief sought

P - Persons or parties involved

Example:

A company erroneously advertizes a car for $4088.00 instead of $4988.00 in a newspaper. A customer wanted to buy the car at the advertised price. The company refuses to sell the car for the lower price. Is there a cause of action for the customer?

T: The subject matter is the auto - but this is not of any real importance as the same rule would apply to any newspaper ad.

A: Breach of contract (or lack of a binding contract)

R: Specific performance (delivery of the car at the advertised price) or damages (the difference between what the customer has to pay for a similar car and the advertised price).

P: Customers who rely on advertisements - sellers.

15. Formulate the legal issues

This requires knowledge of the substantive law.

The researcher must get an overview of the subject area. Legal encyclopedias can be a big help here. You must see how the issue fits into to the overall picture.

What is the issue? Does an advertisement in a newspaper constitute a valid offer? One that is binding when accepted?

First, determine whether state or federal law applies. If you don=t know, your search will produce authority in only one area.

Second, find any relevant statutes on point.

Third, see if any cases interpret that statute.

Find the rules which govern this scenario.

17. Research the issues presented

It is recommended that you research each issue separately and completely before going on to the next issue.

Read statutes and cases on point. Anticipate both sides of the argument and locate all the authority, both for and against your position.

Look for underlying principles in case law......you will probably not find an identical factual scenario.

18. Overview of the course

1. Dictionaries

2. Encyclopedias

3. Digests

4. Reporters

5. Codes

6. A.L.R.

7. Shepards

8. Treatises, periodicals, restatements

9. Computerized legal reseearch

10. Looseleaf services

CHAPTER 16 LEGAL ENCYCLOPEDIAS

19. A valuable starting point

Encyclopedias are particularly useful for those who have no knowledge of the topic.

They include all sources of law and give an overall background to the topic.

Most research begins with secondary publications.

20. Format

They are narrative in format with many footnotes to primary sources.

They are not critical or evaluative -- they simply state propositions of law.

They are not as in depth as other sources and your research should never stop there.

Be sure to check out the referenced sources. Often, a summary-type statement will be based on a case with a different set of facts. And the statement will not legitimately apply to the facts under consideration.

21. Never cite as authority

As a general rule, no secondary source should be cited as authority for a legal proposition.

This rule has exceptions, however -- in trial, for example, when the court has access to a treatise on point (ie. Law of Evidence in Virginia).

22. Corpus Juris Secundum (C.J.S.)

A West publication. It originally boasted that it referenced all cases. This changed in the mid-1980's -- now they report sample cases on point.

It cross-references to key numbers, which as we will find, is very valuable.

23. General and volume indexes

The general index at the end of the entire set includes topics and definitions.

The topic or volume index (located in the volume in which the topic ends) covers the material for that specific volume or those specific volumes. Can be used when you know the overall topic which will include the answer to your research.

24. American Jurisprudence 2d (Lawyers= COOP)

Lawyers COOP is now a part of the West Group.

It references A.L.R. and others sets originally published by them.

It places greater emphasis on statutory law, federal procedural rules and uniform state laws.

25. Other AmJur publications

New Topic Service (looseleaf) for new areas of the law (ie. Credit Cards and Charge Accounts) which will eventually be included in the main volumes.

Desk Book, which is a sort of almanac of miscellaneous data (ie. law schools).

Proof of Facts to assist a trial attorney in preparing for trial and the examination of witnesses.

Trials as a sort of treatise on trial practice.

Legal Forms 2d and Pleading and Practice Forms Revised.

(West also has a set of form books).

26. West=s Encyclopedia of American Law

A 12 volume set directed to the non-lawyer.

27. Updating system

They are all updated with annual pocket supplements and replacement volumes.

Always check the supplement first -- it might be meant to replace the discussion in the main volume.

28. Methods of research

Index method: using the index with a trigger word on point

Analysis method: perusing the table of contents which precedes each section. It is called this simply because the table of contents is called the Aanalysis.@

29. Virginia=s encyclopedia

Michie=s Jurisprudence for Virginia and West Virginia

Can be used in the same way as the national encyclopedias.

30. Words and Phrases

A West publication which gives definitions of words and phrases found in court cases.

The headnote from a case is simply included in these volumes with the case reference.

It does not reference key numbers, however.

31. Legal Dictionaries

Gives some legal references, but not all.

Very useful for a person unfamiliar with a particular area.

CHAPTER 3 - COURT REPORTS

32. Court reports

Compilations of judicially-decided cases, most often from state and federal appellate courts, arranged according to some grouping, such as jurisdiction, court or subject matter.

Generally, trial court opinions are not published as they are not binding on any other trial court. An exeption to this can be found in the federal trial courts.

33. Court organization

Trial courts: courts of first instance - they determine questions of fact and make the record for the appellate court to oversee.

Appellate courts: Decide only questions of law. They do not receive new evidence.

Their rulings are binding on the trial courts under their authority.

34. Methods of court reporting

The decision of the court (affirmed, reversed or remanded) will normally be followed by a written opinion, giving the reasons for its action (this contains the language that the researcher is looking for).

The researcher is looking for the reasoning that leads to the opinion, not just the results of the researched case.

35. Case names

Cases generally are identified by the names of the parties to the litigation.

Payne v. Green (in the table as Payne v. Green)

In re: Payne (in the table as Payne, In re) - these are judicial proceedings in which there are no adversarial parties: ie. Bankruptcy, probate, habeas corpus, contempt, juvenile)

Ex Parte Payne (in the table as Payne, Ex parte) -- a special proceeding

State on the relation of Payne v. Green (in the table as State ex rel. Payne v. Green) -- involve extraordinary legal remedies, ie. Mandamus, prohibition, certiorari, quo warranto and habeas corpus.

State v. Payne (in the table as State v. Payne) -- criminal cases

36. Docket number

This is the means of identifying the particular case.

This number will be used for all pleadings and other filings.

When it is appealed, it will be given a new number.

NOTE: this is not the case citation (its location in a court reporter).

37. Date of decision

This will be found after the docket number in the reported decision. It represents the date on which the decision was rendered, which could be years after the trial of the case.

Only the year of the decision will be included in the citation.

38. Prefatory statement

This explains the nature of the case, its disposition in the lower court, the name of the lower court and the action taken by the court of appeals.

39. Headnotes

Editorial summaries of the rules of law found in the case. Are not part of the opinion.

Each headnote represents a different point of law.

40. Opinion of the court

An explanation of the court=s decision.

Majority opinion: the actual ruling which is binding on the lower courts.

Concurring opinion: an opinion written by a member of the majority who agrees with the result but disagrees with the court=s reasoning.

Dissenting opinion: an opinion written by a minority judge who disagrees with the majority.

Per curiam opinion: an opinion written in behalf of the entire majority rather than by an individual judge.

Memorandum opinion: a brief holding of the whole court in which the opinion is limited or omitted altogether.

41. Ratio decidendi

The basis for the decision - the point in the case which determines the result.

42. Obiter dictum

A collateral statement contained in the opinion, which does not relate directly to the issues raised in the case -- and which is not binding as precedent.

43. Official and unofficial reports

If the publicationof the court reports is sanctioned by statute, they are official reports.

Ones published without such authority are unofficial.

As a rule, all citations should be given (not just the official ones).

44. Slip opinions

Individual opinions without any editorial enhancements. - Cases are first published this way.

They have numbers which are not connected to the citation they will get.

45. Advance sheets

Softbound pamphlets of cases as they are reported - a piece of a reporter published before the reporter comes out.

Contain the same pagination and editorial treatment as the reporter which follows.

46. Organization of court reporters

Some cover individual courts (ie. Virginia Supreme Court).

Others cover groups of courts in one state (called Miscellaneous Reports).

Others cover groups of states (Regional Reports).

47. National Reporter System (West)

Covers all state courts - including intermediate courts of appeals- in 7 regional reporters.

Include a digest and words and phrases section in each volume.

Has key numbered headnotes.

West is beginning to offer individual state reporters in its National Reporter System

It will offer individual state volumes which are paginated regionally.

48. Official state reporters

When the state publishes its own cases - they are parallel reports with West.

West star paginates its cases with the official ones.

49. Methods of citation

The name of the case (as it should appear in the citation) can be found at the top of each page of the opinion.

Cite the official version first, then the unofficial ones.

Name (underlined), comma, volume, reporter (abbreviated), page and year (in parens).

Court abbreviation: state abbreviation for the Supreme Court of that state. Add >App.=

for the intermediate court of appeals for that state.

If the citation does not indicate which court the case came from, include an abbreviation of that court preceding the year in the parens.

660 F. 2d 1000 (4th Cir. 1990)

802 F. Supp. 20 (E.D. Va. 1990)

330 S.E. 2d 330 (Ga. App. 1990)

50. West=s Blue and White Book of Parallel Citations

Blue Book: from the official to the unofficial.

White part of the Blue and White Book: from the official to the unofficial.

CHAPTER 4 FEDERAL COURT CASES

51. Reporters for U.S. Supreme Court cases

U.S. Reports (G.P.O.) - official

Supreme Court Reports (West)

U.S. Supreme Court Reports (Lawyers= Edition) (Lawyers COOP)

U.S Law Week (BNA) - for speedy publication

52. United States Courts of Appeals

Federal Reporter for all 13 circuits.

53. United States District Courts

Federal Supplement

Federal Rules Decisions

54. Other federal reporters

Bankruptcy Reporter

Military Justice Reporter

Veterans Appeals Reporter

Federal Claims Reporter

CHAPTER 6 - DIGESTS FOR COURT REPORTS

55. Digests - the layout

Digests are sets of books which rearrange case summaries (headnotes) by topic.

As compared with legal encyclopedias, a typical page includes a group of case summaries on the same topic rather than a paragraph or two with supporting footnotes.

These summaries include references to the case as well as any statutes or constitutional provisions related to it.

56. Types of digests

They include digests for individual states, for groups of states, for the U.S. Supreme Court, for all federal courts and sometimes for types of courts (ie. Bankruptcy Digest).

There is also a mammoth set of digests covering all cases (the >Decennials=).

57. The key number system

By West. - The law is divided into 435 topics, with varying subtopics, covering the narrowest legal principles possible. Ideally, every legal concept has its own key number.

A key number is one of these topics followed by the number attached to that topic. It also has a brief description of that principle (although that description is not included when giving the key number).

Digests are then arranged alphabetically by the 435 topics.

58. Key numbered headnotes

As West prepares a case for inclusion in its reporter, it analyzes it and creates headnotes, which are then key numbered according to topic.

These headnotes are then also included in the appropriate digest. They may go in only one or in several digests (as different ones may all be appropriate).

59. The American Digest System

This is the heart or base of all the cases that are digested. It includes 3 different sets of digests:

The Century Digest: for cases prior to 1896 (not key numbered)

The Decennials: ten year digests beginning in 1896

The General Digest: to bridge the gap between the last Decennial and the present.

Beginning with the Ninth Decennial (1976), West brought them out in two parts (covering five years).

Currently, the Eleventh Decennial (Part I) is in progress (1996-2001).

60. The Table of Key Numbers

Located in every 10^th volume of the General Digest, it is designed to speed up the search through the General Digest by telling the reader which particular volumes of the that digest contain any particular key numbers.

61. Finding cases in the index

The Descriptive Word Index is used in just the same way as the index to an encyclopedia. Except that it gives you a key number rather than a topic and section.

The analysis method can also be used as each topic includes a table of contents.

The table of cases method is very useful. If you have a case name, you can look it up in the table of cases and get a key number for the various topics in that case. This requires that the name not be too common so that too many names exist.

If you have a case on point, but want Virginia cases:

1) Get the parallel citation from the Blue Book

2) Read the case in the regional reporter

3) Get the key number from the appropriate headnote

4) Look in the Virginia-West Virginia Digest for Virginia cases on the same point

62. More user-friendly digests (than the decennials)

State digests: include state appeals courts and all levels of federal courts (which come from that state). -- Are updated with pocket supplements.

There are 5 regional digests corresponding with 5 of the 7 regional reporters as well.

Supreme Court Digest and federal digests (which include all 3 levels of federal courts):

Federal Digest (prior to 1939)

Modern Federal Practice Digest (1939-1960)

Federal Practice Digest 2d (1960-1975)

Federal Practice Digest 3d (1975-1983)

Federal Practice Digest 4^th (1975-date)

There are also digests for specialized reporters (Bankruptcy Digest, Military Justice Digest).

63. The stop date

On the inside cover of the pocket supplement in a digest, a table tells the last citation of each reporter feeding that digest.

64. Popular name tables

Look a case up by its popular name.

CHAPTER 8 - CONSTITUTIONS

65. Their importance

Constitutions, both federal and state, set up the basic framework of rights and protections that we enjoy. Interpretation of the constitutions by the courts is vital to our society.

66. Judicial interpretations

The two most accessible places to find annotated versions are:

a) USCA

b) USCS

They both have a set of volumes preceding the federal code. There is an index at the end of this set of volumes.

They include digested case references to the various sections. - Very detailed.

CHAPTER 9 - FEDERAL LEGISLATION

67. Publication of federal laws

Laws are first published as slip laws (individually).

They are each given a Public Law (or Private Law) number, connected to the current session of the congress (ie. Pub. L. No. 103-1).

These slip laws are published by the Government Printing Office.

68. U.S. Statutes-at-Large

This is a compilation of all the slip laws (both public and private), published in numerical (chronological) order for that session of congress.

The volumes are abbreviated >Stat.=

69. United States Code Congressional and Administrative News Service (USCCAN)

This is the West version of the U.S. Statutes-at-Large. It includes some legislative history as well as the text of the statutes.

70. United States Code

Contain 50 titles arranged by topic.

USC: the official version by GPO.

Updated yearly with pocket supplements and completely replaced every 6 years.

USCA: the West version

USCS: the Lawyers COOP version

The annotated version has several advantages over the official one:

a) each Title is published in one or more separate volumes

b) the entire set is updated by annual pocket parts or replacement volumes

c) pamphlets are issued during the year to update the supplements

d) detailed indexing for bound volumes

e) extensive court case annotations

f) references are given to the Code of Federal Regulations

g) both give references to other books in their system

h) they both have popular name tables

i) West gives key number references as well

71. Parallel citations

Federal statutes are cited, not by the volume and page, but by the title and section. So the parallel citations change only the publication itself: 2 U.S.C. # 204

2 U.S.C.A. # 204 (West 1990)

2 U.S.C.S. # 204 (Law. Co-op. 1990)

72. The Tables volume

Shows where statutes in the U.S Statutes-at-Large can be found in the code itself.

73. Locating statutes

a) use the general index or one of the volume indexes if you know which topic to use.

b) analysis method for the particular topic

c) the general indexes have a main entry, >Definitions,= and list all the terms that have been defined within the code.

74. Legislative histories (Chapter 10 - Federal Legislative Histories)

Consist of looking up the documents which led to the statute itself.

The chapter gives an in-depth look at how to find compiled ones and how to prepare one yourself.

Include committee hearing reports, evidence taken, etc.

Can give an insight as to what interpretation to put on a particular phrase in a statute.

CHAPTER 11 - STATE AND MUNICIPAL LEGISLATION

75. Virginia Code

Fantastic index - completely replaced yearly - easy to access

Well annotated.

Include rules of court

76. Citing state statutes

Va. Code Ann. #15.1-324

CHAPTER 7 - AMERICAN LAW REPORTS

77. ALR=s approach to reporting

ALR selects a legal topic to analyze, then picks a representative case to report, and follows it with an in-depth annotation on that topic.

This can be described as selective law reporting.

It came under the West Group umbrella in 1996 and now references key numbers and CJS in its annotations.

78. The various ALR series

ALR Fed: 1969-date - federal topics only (prior to 1969, federal topics were included in the other series).

ALR: 1919-1948 (realistically only of historical value now)

ALR 2d: 1948-1965

ALR 3d: 1965-1980

ALR 4^th: 1980-1992

ALR 5^th: 1992-date

79. The value of an ALR annotation

All your research has been done for you. Case and other references. In-depth.

More than you realistically need.

80. Locating a case in ALR

ALR Index: for all ALR series (except the first one)

ALR Federal Quick Index

ALR Quick Index: for ALR 3s, 4^th and 5^th

The ALR index is kept current with pocket supplements.

81. ALR Digests

Separate digests for ALR and ALR 2d - then a combinded digest for ALR 3d, 4^th and Fed.

They are laid out topically with headnotes under each topic of the cases reported by ALR.

You could locate a topic and annotation this way.

82. Updating an ALR annotation

ALR: Blue Book of Supplemental Decisions

ALR 2d: Later Case Service

ALR 3d, 4^th 5^th and Fed: annual pocket supplements

83. Annotation History Table

Located in the last volume of the ALR Index.

The table shows whether a subsequent annotation has superseded or supplemented an annotation.

84. Annotations in Lawyers Edition

Certain cases in L.Ed. have annotations following those cases. Very unusual to find annotations in a reporter.

85. AmJur and Shepards

AmJur references ALR articles and Shepards references cases found in ALR (both reported cases and cases mentioned in ALR articles).

CHAPTER 15 - SHEPARDS CITATIONS

86. It=s purpose

To shepardize a case is to check if the case itself has been modified by a higher court or to see if a later case has modified the rule of law of the earlier case.

87. Terms

The cited case: the case you are checking on

The citing case: a later case which mentions the cited case in its opinion

History of the case: what has happened to the cited case (maybe a higher court has reversed the ruling of the cited case.

Treatment of the case: a later case mentions the cited case and comments on the validity of the principle in that case either positively or negatively.

88. Lower case letters preceding History and Treatment entries

These letters indicate how the citing reference somehow affects the cited case.

They either relate to history or treatment - a table in each volume shows what they mean.

If no letter appears, it simply means that the cited case was referenced but neither its history or treatment was affected.

89. The parallel citation

The first entry will be a parallel citation in parenthses - if there is a parallel cite.

90. Separate Shepards for each set of court reports

Often they will follow the reporter in the library - or be found as an entire group by themselves.

91. The superscript figure

This is a small number above the entry - it is clearly not meant to be a part of the cited case=s citation.

It refers to the headnote of the cited case -- it means that the citing case below the superscript figure is referring to that particular headnote of the cited case.

So, if you are interested in headnote #3 of the cited case, you look down the list of citing cases and find those with #3 -- they are the ones on point.

92. State Shepards

Give only citing cases from courts within that state (including federal cases which originated in that state).

It also gives citations found in legal periodicals in the state plus 20 national legal journals.

93. Regional Shepards

Give citing cases from all other jurisdictions.

Note that if a case comes from Virginia, for example, the SE Shepards will always refer to Virginia cases --- when a different jurisdiction references a Virginia case, it will be under a heading showing that jurisdiction.

So a SE2nd cite always means Virginia unless so noted.

94. Citations for Supreme Court Cases

The same volume of Shepards is divided into 3 parts for all 3 of the reporters.

95. The History section

This will show first where a case came from (ie. From the Virginia Court of Appeals when the cited case is a Virginia Supreme Court case0 and then where it went and what was done to it by a later court.

96. ALR references

Shepards indicates whether the cited case has been cited in an ALR annotation or been reported as the subject of an ALR annotation.

97. Shepards for statutes

There are Shepards for statutes and constitutional provisions as well as cases, showing what has happened to a particular statute.

CHAPTER 13 - ADMINISTRATIVE LAW

98. Administrative agencies

Governmental agencies which combine the roles of lawmaking, law enforcement and adjudication. They are created by Congress or the President and tend to cover specialized areas that are outside the expertise of Congress.

National Labor Relations Board - FAA - FCC

They issue regulations and some (which have adjudicatory power) decide cases and render decisions.

99. Code of Federal Regulations (CFR)

Contains the regulations created by these agencies -- is replaced annually (in quarterly installments).

Can be accessed through the index just like any other code.

Westlaw and other databases also gives access to these regulations.

Think of it as a second federal code.

The federal code indexes will often send you to the CFR.

100. Judicial review of agency decisions

When an administrative agency renders a decision, it is reviewable in the federal courts.

These cases can be located in the West federal digests and Westlaw.

CHAPTER 14 - LOOSELEAF SERVICES

101. Areas covered

In administrative law, there is a need for more frequent updating than with cases and statutes.

Looseleaf publications satisfy this need.

102. Characteristics

Basically, they are made up of looseleaf binders which allow individual pages to be replaced. It allows for updating right in the binder itself.

Other types are in a newsletter format so that each newsletter is added to the binder chronologically.

103. CCH and BNA

Commerce Clearing House and Bureau of National Affairs are the largest companies providing this service.

104. What they include

Full text of statutes

Full text or digests of court cases or agency decisions

Editorial comment

Tables of cases and statutes

Topical indexes