Legal Research : How to Find and Understand the Law

by Elias, Stephen; Levinkind, Susan

• ISBN13: 9781413300581
• ISBN10: 1413300588
• Edition: 12th
• Format: Paperback
• Copyright: 2004-07-30
• Publisher: Nolo

Summary

For those determined to conquer a real or virtual law library, here's the book to check out.

Author Biography

Stephen Elias is an attorney and the author and co-author of many Nolo titles, including Trademark, Getting Paid and How to File for Chapter 7 Bankruptcy Susan Levinkind is a law librarian and teaches legal research to whomever will listen

Table of Contents

How to Use This Book
An Overview of Legal Research
Patience and Perspective	2	(1)
How to Find (and Feel at Home in) a Law Library	2	(1)
Legal Research on the Internet	3	(1)
A Basic Approach to Legal Research	4	(2)
Six Time-Saving Research Tips	6	(2)
Understand the Legal Uncertainty Principle	8	(1)
Know When You're Done	9
An Overview of the Law
What Is the Law?	2	(1)
Foundations of American Law	2	(1)
The Increasing Importance of Statutes and Regulations	3	(1)
The Development of American Common Law	3	(1)
Where Modern American Law Comes From	4	(1)
About Going to Court	4
Putting Your Questions Into Legal Categories
The Land of the Law	2	(1)
Find the Broad Legal Category for Your Problem	3	(7)
Identify Specific Terms for Your Problem	10
Getting Some Background Information
How Background Resources Can Help	2	(1)
Self-Help Law Resources	3	(1)
Law Textbooks	3	(1)
Legal Encyclopedias	4	(18)
Form Books	22	(3)
Practice Manuals	25	(3)
Law Reviews and Other Legal Periodicals	28	(5)
Specialized Loose-Leaf Materials	33	(1)
Treatises and Monographs	34	(2)
Restatements of the Law	36	(1)
Background Resources on the Internet	36
Constitutions, Statutes, Regulations and Ordinances
Constitutional Research	4	(2)
Introduction to Federal Statutes	6	(1)
How to Find Statutes in the United States Code	6	(11)
How to Find a Recent or Pending Federal Statute	17	(3)
Finding Pending and Recent Federal Legislation on the Internet	20	(3)
Finding Out-of-Date Federal Statutes in the Law Library	23	(1)
Finding State Statutes in the Law Library and on the Internet	24	(4)
Finding Recently Enacted or Pending State Statutes	28	(2)
How to Read Statutes	30	(4)
The Importance of Cases That Interpret Statutes	34	(2)
Using Words and Phrases to Interpret Statutes	36	(1)
Using Attorney General Opinions to Interpret Statutes	37	(1)
Using Legislative History to Interpret Statutes	38	(4)
Using Uniform Law Histories to Interpret Statutes	42	(1)
Regulations	43	(7)
Procedural Statutes and Rules	50	(1)
Local Law---Ordinances	51
Understanding Case Law
What Is a Case?	2	(11)
How Cases Affect Later Disputes	13
How Cases Are Published
Federal Cases	2	(2)
State Court Cases	4	(1)
Keeping Case Reporters Up-to-Date	4	(2)
The Newest Cases	6	(1)
Publishing Cases on the Internet	7
Finding Cases
Interpreting Case Citations	2	(2)
How to Find Cases in the Law Library	4	(13)
Finding State Case Law on the Internet	17	(3)
Finding Federal Case Law on the Internet	20	(1)
Using VersusLaw to Research Federal and State Case Law	20	(3)
The Next Step	23
Shepard's, Digests and the Internet: Expand and Update Your Research
Shepard's Citations for Cases	2	(14)
The West Digest System	16	(8)
Expanding and Updating on the Internet	24
How to Write a Legal Memorandum
Why Prepare a Legal Memorandum?	2	(1)
How to Prepare a Legal Memorandum	2	(1)
Sample Legal Memorandum	3
The Legal Research Method: Examples
The Facts	2	(1)
Classify the Problem	2	(1)
Select a Background Resource	3	(1)
Use the Legal Index	3	(6)
Get an Overview of Your Research Topic	9	(4)
Use Shepard's Citations for Cases	13	(4)
Check the Pocket Parts	17	(2)
Use Shepard's and Digests to Find On-Point Cases	19	(2)
Summary	21	(2)
Constitutional Research	23
Legal Research Online
What's Out There---And What Isn't	2	(1)
How Legal Materials Are Organized on the Internet	3	(1)
Searching by Subject Matter Categories on the Internet	4	(1)
Key Word Searching on the Internet	5	(7)
An Online Search Strategy	12
Appendixes
A Research Hypotheticals
B Research Hypotheticals and Memoranda
C Glossary of Legal Terms
Index

Excerpts

How to Use This Book

Legal research comes in many forms. Legal researchers have a myriad of faces. Recognizing these two facts, we have designed this book to be a flexible tool, of use to researchers of various levels of sophistication.

If you are new to legal research, start with Chapter 2 and work your way through the book. Chapter 2 will introduce you to an efficient and sensible method for approaching most any legal research project. Chapter 3 provides an overview of our legal system. Chapters 4 through 11 show you how to:

ò identify your research problem according to

recognized legal categories

ò locate books that will give you an overview of the law

that affects your particular issues

ò find and use law resources on the Internet

ò find, read and understand the law itself: statutes

(laws passed by legislatures), regulations (rules issued

by government agencies) and cases (decisions by

courts)

ò use the tools found in all law libraries-Shepard's

Citations for Cases and case digests-that let you find

court opinions that address the issues you're

interested in, and

ò organize the results of your research into a legal

memorandum.

Chapter 12 provides a real-life example that puts all the steps together and gives you a clear picture of how to solve a legal research problem. Chapter 13 provides a brief overview of computer-assisted legal research-what it is and how to use it and the types of resources available on the Internet.

The Appendixes contain a set of legal research problems and answers that let you test your skills in a law library. Library exercises that enhance your skills in key areas are also contained in the chapters. Finally, Chapters 2 through 10 have review questions and answers.

If you already have some general legal research skills but want guidance on a particular aspect or phase, turn to the appropriate chapters and sections for a thorough explanation of a particular strategy.

If you want a quick refresher on the specific steps involved in a particular research task-for example, how to find a particular state statute you've heard about-use our "Summing Up" feature. These are in pink boxes. A list of Summaries directly follows the table of contents in the front of the book.

The primary purpose of this book is to show you the "how to do it" of legal research in a regular law library. As mentioned, review questions following Chapters 2 through 10 help you focus on the important points you should know before going on. To the extent you need more indepth information about a particular research tool or resource, your newly acquired skills will help you find it in the law library itself.

If you are unable to visit the law library-perhaps because of distance or because of your work-you have another option. Every day, new legal materials appear on the Internet, either at no cost or for a reasonable fee. You'll find not only the law itself-statutes, court cases and regulations-but a number of secondary sources, such as law journals and scholarly commentaries on specific legal areas. Throughout this book, we suggest how you can use the Internet as an alternate way to find the particular "old fashioned" resources we are discussing at the time.

One last word. The best place to read this book is in a law library or next to a computer with an Internet connection. Getting your hands on the books and the websites will make much of this book come alive in a way that our words, no matter how carefully chosen, cannot. You will especially benefit by actually doing-one step at a time-the research examples set out in some of the chapters, and by completing the research problems in the Appendixes.

We'd Like to Hear From You

The registration form at the back of the book allows us to notify you of current product information and is our way of hearing from our readers about how they liked (or didn't like!) this book. We use your comments when we prepare for new printings and editions. But we have found that people tend to fill the form out right away, before they have used the book and can tell us specifically what worked and what didn't. Please note your thoughts below as you use the book, then complete the form and mail it to us. Thanks!

Notes:

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An Overview of Legal Research

A. Patience and Perspective 2/2 B. How to Find (and Feel at Home in) a Law Library 2/2 C. A Basic Approach to Legal Research 2/3

Step 1: Formulate Your Legal Questions 2/4

Step 2: Categorize Your Research Questions 2/5

Step 3: Find Appropriate Background Resources 2/5

Step 4: Look for Statutes 2/5

Step 5: Find a Relevant Case 2/5

Step 6: Use Shepard's and Digests to Find More Cases 2/5

Step 7: Use Shepard's to Update Your Cases 2/5 D. Six Time-Saving Research Tips 2/6

1. Take Careful Notes 2/6

2. Check Out the Law Library 2/6

3. Collect Your Materials in Advance 2/6

4. Find Special Tools and Resources Unique to Your State 2/6

5. Get Yourself a Good Law Dictionary 2/6

Library Exercise: Paperchase 2/7

6. Use the Catalog 2/8 E. Know When You're Done 2/8

This chapter has two purposes: to give you some basic rules for efficient use of the law library and to provide a basic legal research approach good for virtually any legal task. This is nothing we invented; rather, it is the almost universal method of experienced legal researchers. Once you understand how this overall approach works, any research task will be greatly simplified. Although some of what we say is fairly conventional (for example, keep accurate notes), much of it isn't. For example, we suggest that achieving the highest quality of legal research requires a commitment to perseverance and patience, and a belief in yourself.

A. Patience and Perspective

A certain type of attitude and approach are required to efficiently find the information you need among the billions of legal facts and opinions in the law library. Probably the most important quality to cultivate is patience -a willingness to follow the basic legal research method diligently, even though it's a time-consuming process. (See Section C, below.)

Unfortunately, many legal researchers are impatient, preferring to make a quick stab at finding the particular piece of information they think they need. While a quest for immediate gratification is sometimes appropriate when attempted by a master researcher, it most often results in no satisfaction at all when attempted by the less experienced.

Perhaps it will be easier to understand how legal research is best approached if we take an analogy from another field.

Seeking and finding information in a law library is a lot like learning how to cook a gourmet dish. To cook the dish you first need to settle on a broad category of cuisine -Japanese, French, Nouvelle California, etc. Next, you find one or two good cookbooks that provide an overview of the techniques common to that specific cuisine. From there you get more specific: You find a recipe to your liking, learn the meaning of unfamiliar cooking terms and make a list of the ingredients. Finally, you assemble the ingredients and carefully follow the instructions in the recipe.

Legal research also involves identifying a broad category before you search for more specific information. Once you know the general direction in which you're headed, you are prepared to find an appropriate background resource -an encyclopedia, law journal, treatise-to educate yourself about the general issues involved in your research. Armed with this overview, you can then delve into the law itself-cases, statutes, regulations-to find definitive answers to your questions. And, when your research is through, you can pull your work together into a coherent written statement. (We explain in Section E, below, that writing up your research is crucial to knowing whether you're done.)

Of course, in the legal research process there are lots of opportunities for dead ends, misunderstandings and even mental gridlock. Answers that seemed in your hand five minutes ago evaporate when you read a later case or statutory amendment. Issues that seemed crystal clear become muddy with continued reading. And authoritative experts often contradict each other.

Take heart. Even experienced legal researchers often thrash around some before they get on the right track. And the truth is, most legal issues are confused and confusing -that's what makes them legal issues. Just remember that the main difference between the expert and novice researcher is that the expert has faith that sooner or later the research will pan out, while the novice too easily becomes convinced that the whole thing is hopeless. Fortunately, this book and many law librarians are there to help the struggling legal researcher.

B. How to Find (and Feel at Home in) a Law Library

Before you can do legal research, you need access to good research tools. Not surprisingly, these are found primarily in law libraries, although sometimes legal research involves government document and social science collections. Many law libraries are open to the public and can be found in most federal, state and county courthouses.

Law school libraries in public universities also routinely grant access to members of the public, although hours of access may be somewhat restricted depending on the security needs of the school. It is also often possible to gain access to private law libraries maintained by local bar associations, large law firms, state agencies or large corporations if you know a local attorney or are willing to be persistent in seeking permission from the powers that be.

Law libraries can be intimidating at first. The walls are lined with thick and formally bound books that tend to look exactly alike. Then too, for the layperson and beginning student, it is easy to feel that you are treading on some sacred reserve, especially in courthouse libraries where the average user is a formally attired lawyer and where, on occasion, a judge is present. You might even have the secret fear that if it is discovered that you're not a lawyer, you'll either be asked in a loud voice to leave or at best be treated as a second-class citizen.

If you remember that public funds (often court filing fees) probably help buy the books in the library and pay the people running it, any initial unease should disappear. It may also help you to know that most librarians have a sincere interest in helping anyone who desires to use their library. While they won't answer your legal questions for you, they will often put in your hands the materials that will give you a good start on your research or help you get to the next phase.

Another way to deal with any feelings of intimidation is to recall your early experiences with the public library. Remember how the strangeness of all the book shelves, the card catalog and the reference desk rather quickly gave way to an easy familiarity with how they all fit together? Your experience with law libraries will similarly pass from fear to mastery in a very short time.

Helping you understand the cataloging, cross-reference and indexing systems law libraries use is the most important function of this book. As you proceed, we hope you will see that learning to break the code of the law library can be fun.

C. A Basic Approach to Legal Research

The diagram below depicts the usual flow of legal research when you start from scratch. Take a good look at it, but don't worry too much about the details. They are covered in later chapters.

As you can see, the diagram is shaped a bit like an hourglass. You start with a universe of possibilities, then narrow your search until you find one or two relevant cases. Those cases, in turn-with the assistance of certain cross-reference tools-allow you to rapidly locate many additional relevant cases.

Your most fervent hope when you start a basic legal research task is to find at least one case that perfectly-and favorably-answers your specific research question in an identical factual context. Of course, this goal is seldom if ever met in reality. But the more cases you can locate that are relevant to your question, the better your chances of nailing down a firm answer.

The method depicted in the diagram is appropriate for the type of research that involves an open-ended question about the law. However, it may be overkill for someone who has a very specific research need, such as finding a specific case, reading a specific statute, finding out whether a specific case is still good law and so on.

Also, we don't intend the diagram as a lockstep approach to legal research. For example, it may be most efficient in certain circumstances to start your research in a West Digest (a tool that summarizes cases by the legal topics they address) instead of using a background resource or code for this purpose. It all depends on such variables as the amount of information you already bring to your quest, the time you have to spend and the level of certainty you are after. Your goal, after all, is to arrive at the best possible answer to your question in the least possible time, not to mechanically complete a laborious research process.

Finally, understand that the method outlined here was specifically created for research in the law library. If you are doing the bulk of your research on the Internet, you may be using a different set of tools in a somewhat different order. We provide additional strategic guidance for Internet legal research in Chapter 13.

Here, then, is the diagram and a discussion of each research step portrayed in it.

Step 1: Formulate Your Legal Questions

The top box, "your broad legal research topic," represents the first step in legal research: formulating the questions you wish to answer. This is not as easy as you may think.

Continue...

Excerpted from Legal Research by Stephen Elias and Susan Levinkind
Excerpted by permission. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.