A Guide to Legal Analysis, Research and Writing: A Systems Approach

by Russell, Layne

• ISBN13: 9780595159970
• ISBN10: 0595159974
• Format: Paperback
• Copyright: 2001-01-01
• Publisher: Iuniverse Inc

Table of Contents

Preface	xi
Legal Research and Writing Fundamentals	xi
Overview	xi
Outstanding Features	xiii
Competition	xiii
Content	xiv
Organization: ``What is Law?''	xiv
``Developing the Issue''-The Concept of Analytical Thinking	xiv
The Substantive Answer to the Relevant Question	xv
Legal Research	xv
When to End Legal Research	xvi
Legal Writing	xvi
Ancillary Materials	xvi
CALR	xvi
Introduction	xvii
How Can I, a Non-Lawyer, Ever Begin to Understand the Law?	xvii
How will I understand the law when the words are confusing and have different meanings?	xviii
PART ONE---LEGAL ANALYSIS	1	(36)
Understanding ``Law''	3	(9)
Where does Law come from? Where's the mystery?	3	(1)
From ourselves	3	(2)
Is there a comparison you can provide me?	5	(1)
Should not then our laws remain the same?	6	(1)
No, they should constantly develop for the most part.	6	(1)
But I don't know enough of ``common sense.'' How can I rely on my own limited understanding?	7	(1)
True, law and sense are not always the same.	7	(1)
If we all have this ``sense'' why do we need Law?	8	(1)
Sum it up for me.	9	(3)
Developing the Issue-the Concept of Analytical Thinking	12	(4)
How does one begin to think like an attorney?	12	(1)
First Rule: Step away from yourself	12	(4)
Spotting the Issue and Avoiding Irrelevant Matters	16	(8)
How do I know what is relevant once I have viewed other aspects or issues of my case?	16	(1)
Second Rule: Ask yourself	16	(1)
``What are the facts?''	16	(1)
``What are the Issues?'', and	16	(1)
``What does the wronged party want?''	16	(1)
(What issues are relevant?)	16	(1)
What are the Facts?	17	(1)
What are the Issues?	17	(1)
What does the Wronged Party Want?	17	(1)
(What Issues are Relevant?)	17	(1)
What are the Facts?	17	(1)
What are the Issues?	18	(1)
Give me an Example	18	(6)
What does the Wronged Party Want?	19	(5)
The Substantive Answer to the Relevant Question	24	(11)
Now I know the important and relevant issues, what are the answers?	24	(1)
Third Rule (Part A): Ask yourself, ``How may the wronged party get what he wants?''	24	(1)
Now where am I headed?	25	(1)
General to Specific	25	(1)
How do I begin to know how the wronged party gets what he wishes?	26	(1)
Third Rule (Part B): Categorize the relevant Issues	26	(1)
Civil and Criminal matters	27	(1)
Civil	27	(5)
How does this Categorization Help?	32	(3)
Review	35	(2)
PART TWO---LEGAL RESEARCH	37	(54)
Legal Research---The``Maze''	39	(12)
Why legal research?	39	(1)
Where do I start looking for my answers?	40	(1)
Once I've found the law library, what next?	41	(1)
Now that I've set myself up in the library, what next?	42	(1)
Are there any goals in legal research? Can you give me some simple objectives?	43	(1)
Why are some sources or materials more authoritative than others?	44	(1)
What is a Lawgiver?	44	(4)
What are Secondary Sources?	48	(1)
And Primary Sources?	48	(1)
``Law Types by Function''	49	(2)
Steps to Take: No. 1	51	(10)
First Step---Using Secondary Sources, learn background information about the area of law that you are studying (the general category)!	51	(4)
What if I can't locate the word I'm looking for? What if I don't see it in the index?	55	(2)
What do I do when I can't understand what I am reading?	57	(4)
Steps to Take: No. 2	61	(15)
Second Step---From your focus on the particular aspects of your fact pattern that set apart your situation from others, and using the Primary Sources of Law, learn the specific information about your area of law.	61	(1)
What do these references contain?	61	(1)
But why would all relevant opinions and statutes not come up during my background legal research (First Step)?	62	(1)
How do I research opinions?	63	(1)
What Reporters exist for the Federal Courts?	64	(1)
When is a court required to follow another court's opinion?	65	(1)
When may a court overrule a prior case within its jurisdiction?	66	(1)
What is a ``digest''?	67	(1)
How do I research a statute?	68	(1)
When is a court required to follow an enacted law (such as statute, regulation, ordinance, etc.)?	69	(1)
Once I find the statute, how do I read it?	70	(3)
Where do I find the lawmakers' laws? Are there names for the bound volumes which contain the full text of their laws?	73	(3)
Steps to Take: No. 3	76	(12)
How do I know if my supporting case or other law source is still valid?	76	(1)
Third Step-Update your Primary Sources of law to make sure that they are the current law. Validate!	76	(2)
How do I actually use Shepard's? How do I shepardize?	78	(1)
How do I conduct research if I have or know of an ``authority''?	78	(1)
Help me clarify it all	79	(9)
Summary	88	(3)
When Do I End Legal Research?	89	(2)
PART THREE---WRITING ABOUT LEGAL AUTHORITY	91	(20)
Writing: Fundamentals	93	(1)
Writing: A Bold Plan	94	(3)
Writing: The Case Brief	97	(12)
Facts	97	(2)
How do I know which ones are relevant and which not?	99	(1)
Issue	99	(1)
How do I Identify an Issue when Reading a Case?	100	(1)
Holding	101	(1)
Rationale	101	(1)
Assignment 3---Complete Appendix D	102	(1)
IV---Writing: the Inner-Office Memorandum of Law (A.K.A. the Memo)	103	(1)
What is an Inner-Office Memorandum of Law?	103	(2)
After I have researched it, how do I begin to write the Inner-Office Memo?	105	(1)
Legal Writing is a Technical Writing Skill	106	(3)
Writing: Over-All Organization within the Analysis and Counter-Analysis	109	(2)
Assignment 4---Complete Appendix F	109	(2)
Conclusion	111	(2)
Appendix A	113	(18)
Appendix B---Bluebook	131	(4)
Appendix C	135	(2)
Appendix D	137	(40)
Appendix E---Defenses	177	(2)
Appendix F---Writing the Inner-Office Memorandum of Law	179	(26)
Appendix G---Analyzing what you Read (Analytical Reading)	205	(4)
Appendix H	209