law school outline: legal research & writing


Legal Research & Writing

  1. Resources

  1. Hierarchy of resources

  1. Precedent (binding/mandatory)

  1. Federal

  1. Constitution
  2. Treaties
  3. Executive orders
  4. Statutes
  5. Administrative regulations

  1. State

  1. Constitution
  2. Statutes
  3. Administrative regulations
  4. Municipal enactments

  1. Case law interpreting statutes, constitutional provisions

  1. Same jurisdiction

  1. Higher courts
  2. Lower courts
Persuasive authority (non-binding)

  1. Parallel courts
  2. Dicta
Factors affecting hierarchy of resources

  1. Similarity of facts
  2. Level of court
  3. Reputation of judge
  4. Era of a particular court
  5. Unanimous or nearly unanimous higher than majority
  6. Year
  7. Geography (closeness to your court)
  8. Similar social/economic conditions as your court
  9. Similar statute
  10. How good of a discussion and how well reasoned the decision was
Decisions

  1. May be prospective (applicable in the future but not in the case in question)
  2. Precedent

  1. Holding is what binds future judges (rule of law)

  1. Judgment (decision re: question before the court)
  2. Material facts

  1. Too broad/too narrow = bad
  2. Holding must be required for resolution of that case

  1. Court�s role

  1. "finds" facts
  2. "holds" holdings
  3. "says, said" dicta
Research (also see research spreadsheet)

  1. Federal Government

  1. ALR (KF 132) � annotated casebooks  Legal Encyclopedia approach

  1. American Jurisprudence
  2. Corpus Juris Secondum (KF 154)
Legislature (statutory)

  1. Constitution
  2. Session laws (chronological): Statutes at Large (Stat.)
  3. Statutory codes (subject matter) � always look for updates

  1. United States Code (U.S.C.) (KF 62)  United States Code Annotated (U.S.C.A.)  United States Code Service (U.S.C.S.)
Judiciary (case)

  1. Case reporters (chronologically)

  1. Supreme Court

  1. United States Reports (U.S.) � official (1790-present) (KF 101)  Supreme Court Reporter (S.Ct.) � unofficial (1882-present) (KF 101 W4)  United States Supreme Court Reports Lawyers� Edition (L.Ed. [1790-1956] and L.Ed.2d [1956-present]) � unofficial (KF 101 L4)
U.S. Court of Appeals

  1. Federal Reporter (KF 105 W4)

  1. F. (1880-1924)
  2. F.2d (1924-present)
Federal Cases (F.Cas. [1789-1880)U.S. District Court

  1. Federal Supplement (F.Supp.) � cases after 1932 (KF 105 W42)  Federal Reporter

  1. F. (1880-1924)
  2. F.2d (1924-1932)
Federal Cases (F.Cas.[1789-1880]) Cases after 1938 involving proceedural rules for district courts are in Federal Rules Decisions (F.R.D.)Case digests (subject)

  1. Supreme Court

  1. United States Supreme Court Digest (KF101.1 W4)  United States Supreme Court Digest, Lawyers� Edition
All federal courts

  1. Federal Digest (1789-1939)  Modern Federal Practice Digest (1939-1961)  West�s Federal Practice Digest 2d (1961-1975) (KF127 W4-W43)  West�s Federal Practice Digest 3d (1975-present) (KF127 W4-W43)  Decennial Digests (10 year chunks)

  1. General Digests (supplements)
Shepardize

  1. Shephard�s US Citations, Cases (KF 101.2 S54)  Shephard�s US Citations, Statutes (KF 78 S56)  Shephard�s Federal Citations (KF 105 S44)
Agencies (administrative)

  1. Types

  1. Executive
  2. Independent

  1. Administrative registers (chronological)

  1. Federal Register (Fed.Reg.)
Administrative codes (subject)

  1. Code of Federal Regulations (C.F.R.)
State Government

  1. Legal encyclopedia approach

  1. California Jurisprudence, 2d & 3d (KFC 80 C28-29)  Summary of California Law (KFC 80 W4)
Legislature (statutory) � always look for updates

  1. Constitution
  2. Municipal ordinances
  3. Session laws (chronological)
  4. Statutory codes (subject matter; code approach)

  1. Larmac Consolidated Law Index (KFC 40 L37)  Deerings Codes Annotated West�s Annotated Codes (KFC 30.5)  Shepard�s California Citations, Statutes (KFC 59 S44)
Judiciary (case)

  1. Case reporters (chronologically)

  1. California Reports (Cal. 1st, 2d, 3d, 4th) � CA Sup. Ct. cases (KFC 45).  California Appellate Reports (Cal. App. 1st, 2d, 3d, 4th) � CA Appellate cases (KFC 48)  California Reporter (Cal. Rptr. 1st, 2d) � CA Sup. Ct & Appellate Court cases after 1959  Pacific Reporter (P. 1st, 2d) � CA Sup. Ct and Appellate Court cases (App cases before 1960 only) (KF135 P7)
Case digests (subject)

  1. West publishing

  1. State by state

  1. West�s California Digests (KFC 57)
Tied to Pacific Reporter Decennial Digests (10 year chunks; covers all states in one book)

  1. General Digests (supplements)
Shepardize

  1. Shepard�s California Citations (KFC 59 S44)  Shepard�s California Citations, Statutes (KFC 59 S44)
Agencies (administrative) - Best source is the agencies themselvesCitations

  1. Finding parallel citations when you only have one

  1. Check decision�s caption
  2. Table of Contents in case digest
  3. Shepard�s Citations
  4. National Reporter Blue Book or Blue and White Books
Signals

  1. "See generally" � useful background information
  2. "See, e.g." � directly supports a proposition, cited for the same proposition, citation would be merely duplicative
  3. "Cf." � Cited authority states a proposition different from that stated by the person citing to the authority, but is sufficiently analogous to lend support.
  4. "Contra" � Cited authority contradicts a given point.
  5. "Id." � Refers to the last cited authority.
Before you open the books

  1. Gathering the facts (usually not in law school) � must be highly organized

  1. People
  2. Tangible evidence
  3. Books, periodicals, reports
  4. Witnesses
  5. What, when, where, why and how
Analyzing the facts

  1. First list specific words, then general words
  2. West Publishing � tells everything

  1. Parties (and relationships)
  2. Places, Objects, Things
  3. Basis, Issue
  4. Defense
  5. Relief Sought

  1. Lawyers� Cooperative Publishing - concise

  1. Things
  2. Acts
  3. Persons (and relationships)
  4. Places
Identifying the legal issues

  1. Use the list of words.
Logically arranging legal issues

  1. Put "dispositive threshold issues" at the top of the list (those that will cause you to loose your case immediately).
Reach conclusionAnalyzing Statutes

  1. Read the text, including introduction, definitions, etc.  Locate issues  Interpretation

  1. Legislative

  1. Plain meaning
  2. Similar language used elsewhere
  3. Other evidence

  1. Legislative history
  2. Predecessor statutes
  3. Documents used during legislation

  1. Committee reports

  1. Canons of Construction

  1. Ejusdem generis: If a statute contains a specific enumeration followed by a generalization, the general words are of same kind and characteristics as the specific words.
  2. Expressio unitus: If statute specifically says what is covered, then what is not mentioned is excluded from coverage.
  3. "statutes in pari materia should be read together": Interpret statutes which are on the same subject matter as being consistent.

  1. Stare Decisis (look at prior cases which have interpreted the statute)
Updating the law

  1. Manual Shephardizing (checklist on Wren p.108-109:

  1. Get citation of your case
  2. Locate set which corresponds to where your case was published
  3. Look on front of the most recent pocket part supplement to see what your library should contain (i.e. all volumes and supplements for time periods from case�s date to present)
  4. Locate the proper tables of citations for the case�s volume
  5. Find the proper volume number
  6. Find the proper page number
  7. Examine entries under that page number
Computer Shephardizing is much easierSynthesis - Types

  1. Grouping by rule
Analytical categories

  1. Use when courts do not clearly articulate general priciple that explains why various applications of a rule to individual cases have led to differing outcomes.
  2. Develop a descriptive category that makes analytic sense out of decisions involving diverse factual patterns.
  3. Based on degree
Defining the factors of a claim/defense

  1. Characterize facts in a way that explains the results
  2. Deductive pattern in writing: Tell general principle, followed by cases as authorities for conclusion.
Writing

  1. Always include explanation of statute�s terms
  2. Citation is required even for common knowledge (for legal reference)

  1. Full:Gage v. Atwater, 68 P. 581 (Cal. 1902)
  2. Full Pinpoint:Gage v. Atwater, 68 P. 581, 582 (Cal. 1902)
  3. Short:Id. At 582. (see above on usage)
Organization of legal discussion

  1. Issue
Explanation of applicable rule of law (statutes or common law)

  1. Topic sentence should announce the elements, rule, principle
  2. Then paragraph details what that element means based on judicial interpretation in cases
Relevant case law

  1. Holding or synthesis of holdings from multiple cases where the rule of law (above) has been applied
  2. Start paragraph with topic sentence on legal principle, not with facts from a case.

  1. Topic sentence
  2. Holding
  3. Reasoning
  4. Pertinent facts
  5. Dicta
Application of law to the facts of your case (compare and contrast)

  1. Both cases must involve sufficiently similar facts, issues, reasoning, policy.
  2. Begin with transition sentence highlighting if you are going to compare (analogous) or distinguish the case.
  3. Examine relevent facts, argue to compare/contrast to your relevent facts to evaluate strength of comparison.
  4. Apply reasoning and policies of a decided case to your own.
Presentation and evaluation of counterarguments

  1. Precidents and facts that opposing counsel will be relying on
  2. Evaluate strengths of these arguments.

  1. Bad arguments

  1. Legally insignificant or incomplete facts, or misapplication of the law to the facts
  2. Relies on inapplicable reasons or policy arguments

  1. Good arguments

  1. Serve as a warning to our counsel
Conclusion

  1. Evaluate arguments and counterarguments to reach a conclusion on outcome of your problem
  2. Evaluate chance of winning the suit
  3. Focus on issue that has been under discussion.
Organization of legal memorandum

  1. Statement of facts regarding your case

  1. Legally relevant and background facts, all facts mentioned elsewhere in memo, procedural history. JUST THE FACTS, no analysis.

  1. Crutial information only
  2. Put in chronological order
  3. Don�t elaborate on detail � have to be concise. Don�t present long holdings here.

  1. Include what our client wants

  1. Question presented

  1. Issue (one or two sentences)
  2. Write in general terms � not naming parties.
  3. Identify people by relationships per cause of action.
  4. Number each issue

  1. Order of issues should be followed everywhere in the memo and should be logical in order

  1. Begin with short concrete subject quickly followed by an action verb
  2. Incorporate necessary facts
Short answer (see Neumann handout)

  1. Answer quesiton presented, add a sentence summerizing reason.
  2. Come to a conclusion, don�t discuss authority.
Applicable statutes (if any)

  1. Put in block form
Discussion

  1. Begin with thesis paragraph (often repeats short answer/conclusion) � sets reader up for what is coming

  1. Topic sentence on claim
  2. Issue
  3. General legal principle
  4. Application to rule
  5. Legal conclusion

  1. Relevant legal principles and policies
  2. Break each issue into sub issues, examine facts of cases and reasons for principles.

  1. Examine issues in logical order presented in Issues section.
  2. Organize sub issues also in a logical order

  1. Determine whether requirements for claim are satisfied by our facts, explain why.
  2. Examine current law, not historical

  1. Here is where we elaborate on holdings of prior cases

  1. Examine all interpretations possible, evaluate which are most persuasive
Appellate Brief

  1. Title (cover) page

  1. [See sample cover page, remember it must have a colored cover]
  2. Court
  3. Index number to case
  4. Appellant
  5. Appellee
  6. Plaintiff
  7. Defendant
  8. Lower court
  9. Party whose brief this is
  10. Name/address of attorney representing party
  11. Which issue we did

  1. Questions presented: Legal issues that will be argued, incorporating key facts of the case as they relate to the issue.

  1. Each member of the team prepares a (one) question
  2. Reference to statute: "Do the 1st and 14th amendments protect a member�from�"
  3. Question should appear neutral
  4. Locate noun near verb ("Is a statute valid�")
  5. Combined on one page, extra points if the questions are parallel. One question each.
  6. Clear, specific, persuasive
Table of Contents with page numbers

  1. Questions presented
  2. Table of Authorities
  3. Statement of the Case
  4. Summary of Argument
  5. Argument

  1. HEADING

  1. Subheading

  1. Conclusion
  2. Appendix (if any)
Table of Authorities: Page references for authorities relied on in Argument. Divided into categorites:

  1. [see Shappo for how to do this properly]
  2. Alphabetize cases, with citations. If case is used repeatedly, use passim
Constitution and statutes Administrative regulations Misc.From this point down, no more than 45 pages combinedOpinion Below

  1. Tells where to find decisions of the lower courts for this case.
Constitutional Provisions and Statutes Involved

  1. Include provisions determinative of case or relevant to significant issue. Can also be in appendix.
Statement of the Case (Statement of Facts � 10 pages combined)

  1. Tell what happened from our point of view, but don�t be one-sided.
  2. Opening paragraph / Preliminary Statement

  1. Procedural information about how case got to the court (brief)
  2. Nature of action
  3. Parties involved
  4. Wrongs alleged
  5. Losses sustained
  6. Relief requested
  7. Type of order from which appeal is taken

  1. Statement of facts: Material facts from our perspective, arranged chronologically or topically then chronologically

  1. Allocate space per importance, emphasizing the good, de-emphasizing the bad.
  2. Use quotations and citations from the record
  3. Use emotionally significant facts (poverty)
  4. Be complete and tell the truth. No opinions � stick to the facts in the record.

  1. Closing paragraph: Relate facts back to legal issue, summary of decision from court below.
Summary of Argument: 1-2 pages per person (2-4 total) condensing the argument; no citations unless central to argument

  1. Begin with conclusionary statement setting out ultimate claim or claims you want the court to accept.
  2. Make claims about the intermediate steps that make up the arguments, explain briefly the reasons for each conlusion.

  1. Introduction
  2. Each point is an independent reason why I should win, 1 sentence, with subject and verb close together. Made in the affirmative.

  1. Tells issue, pertinent rule of law, legally significant facts, and conclusion on issue.
  2. Use active voice
  3. Break down point, written in form of a statement. Supplies specific reasons for general contention in an explanation, not just an assertion.

  1. Supply the rule.

  1. Do not use references.
Argument [15 pages each]

  1. Sections for each argument (start with best)

  1. HEADING

  1. Subheading

  1. Rule

  1. Format

  1. Thesis

  1. Place after roman numeral but before A
  2. Introduction refers to proposition that paragraph is advancing rather than to the facts of a case.
  3. Should be assertive
  4. Sets out the law and weight of precedent or facts on my side

  1. Rule (lower court or precidence)

  1. Concisely summarize principle of law upon which you are relying
  2. Make sure reader understands relevance to issue in case
  3. Precidence

  1. Strongest cases first
  2. Treat extensively the best 2-3 cases
  3. Come to affirmative conclusion before raising and distinguishing unfavorable precedents

  1. Analysis

  1. Analyze to elicit a positive application of the law
  2. Treat favorable evidence in depth.
  3. Do not ignore unfavorable evidence, but put it forward, briefly and blandly, and provide an explanation if possible. Minimize unfavorable facts, bury in middle.

  1. Make counter-arguments affirmatively
  2. Avoid topic sentences that overemphasize other party�s arguments

  1. Demonstrate that practically, existing rule is not working well.

  1. Conclusion

  1. Notes

  1. Arguing in the alternative is fine (especially use for rational basis / strict scrutiny)
  2. Avoid stringing cites

  1. Cite to specific page (pinpoint cites)

  1. Must (ethical obligation) deal with adverse facts and cases, but bury it and keep minimal
Conclusion

  1. Brief, not a summary of arguments. Specifies relief
  2. Ends with "Respectfully Submitted" followed by our name, SIGNATURES, and address as attorney of record
  3. Be conclusionary
Appendix (if any)

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