law school outline: legal research & writing
Legal Research & Writing
- Hierarchy of resources
- Precedent (binding/mandatory)
- Executive orders
- Administrative regulations
- Administrative regulations
- Municipal enactments
- Case law interpreting statutes, constitutional provisions
- Same jurisdiction
- Higher courts
- Lower courts
Persuasive authority (non-binding)
- Parallel courts
Factors affecting hierarchy of resources
- Similarity of facts
- Level of court
- Reputation of judge
- Era of a particular court
- Unanimous or nearly unanimous higher than majority
- Geography (closeness to your court)
- Similar social/economic conditions as your court
- Similar statute
- How good of a discussion and how well reasoned the decision was
- May be prospective (applicable in the future but not in the case in question)
- Holding is what binds future judges (rule of law)
- Judgment (decision re: question before the court)
- Material facts
- Too broad/too narrow = bad
- Holding must be required for resolution of that case
- Court�s role
- "finds" facts
- "holds" holdings
- "says, said" dicta
Research (also see research spreadsheet)
- Federal Government
- ALR (KF 132) � annotated casebooks Legal Encyclopedia approach
- American Jurisprudence
- Corpus Juris Secondum (KF 154)
- Session laws (chronological): Statutes at Large (Stat.)
- Statutory codes (subject matter) � always look for updates
- United States Code (U.S.C.) (KF 62) United States Code Annotated (U.S.C.A.) United States Code Service (U.S.C.S.)
- Case reporters (chronologically)
- Supreme Court
- 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
- Federal Reporter (KF 105 W4)
- F. (1880-1924)
- F.2d (1924-present)
Federal Cases (F.Cas. [1789-1880)U.S. District Court
- Federal Supplement (F.Supp.) � cases after 1932 (KF 105 W42) Federal Reporter
- F. (1880-1924)
- 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)
- Supreme Court
- United States Supreme Court Digest (KF101.1 W4) United States Supreme Court Digest, Lawyers� Edition
All federal courts
- 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)
- General Digests (supplements)
- Shephard�s US Citations, Cases (KF 101.2 S54) Shephard�s US Citations, Statutes (KF 78 S56) Shephard�s Federal Citations (KF 105 S44)
- Administrative registers (chronological)
- Federal Register (Fed.Reg.)
Administrative codes (subject)
- Code of Federal Regulations (C.F.R.)
- Legal encyclopedia approach
- California Jurisprudence, 2d & 3d (KFC 80 C28-29) Summary of California Law (KFC 80 W4)
Legislature (statutory) � always look for updates
- Municipal ordinances
- Session laws (chronological)
- Statutory codes (subject matter; code approach)
- 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)
- Case reporters (chronologically)
- 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)
- West publishing
- State by state
- West�s California Digests (KFC 57)
Tied to Pacific Reporter Decennial Digests (10 year chunks; covers all states in one book)
- General Digests (supplements)
- Shepard�s California Citations (KFC 59 S44) Shepard�s California Citations, Statutes (KFC 59 S44)
Agencies (administrative) - Best source is the agencies themselvesCitations
- Finding parallel citations when you only have one
- Check decision�s caption
- Table of Contents in case digest
- Shepard�s Citations
- National Reporter Blue Book or Blue and White Books
- "See generally" � useful background information
- "See, e.g." � directly supports a proposition, cited for the same proposition, citation would be merely duplicative
- "Cf." � Cited authority states a proposition different from that stated by the person citing to the authority, but is sufficiently analogous to lend support.
- "Contra" � Cited authority contradicts a given point.
- "Id." � Refers to the last cited authority.
Before you open the books
- Gathering the facts (usually not in law school) � must be highly organized
- Tangible evidence
- Books, periodicals, reports
- What, when, where, why and how
Analyzing the facts
- First list specific words, then general words
- West Publishing � tells everything
- Parties (and relationships)
- Places, Objects, Things
- Basis, Issue
- Relief Sought
- Lawyers� Cooperative Publishing - concise
- Persons (and relationships)
Identifying the legal issues
- Use the list of words.
Logically arranging legal issues
- Put "dispositive threshold issues" at the top of the list (those that will cause you to loose your case immediately).
Reach conclusionAnalyzing Statutes
- Read the text, including introduction, definitions, etc. Locate issues Interpretation
- Plain meaning
- Similar language used elsewhere
- Other evidence
- Legislative history
- Predecessor statutes
- Documents used during legislation
- Committee reports
- Canons of Construction
- 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.
- Expressio unitus: If statute specifically says what is covered, then what is not mentioned is excluded from coverage.
- "statutes in pari materia should be read together": Interpret statutes which are on the same subject matter as being consistent.
- Stare Decisis (look at prior cases which have interpreted the statute)
Updating the law
- Manual Shephardizing (checklist on Wren p.108-109:
- Get citation of your case
- Locate set which corresponds to where your case was published
- 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)
- Locate the proper tables of citations for the case�s volume
- Find the proper volume number
- Find the proper page number
- Examine entries under that page number
Computer Shephardizing is much easierSynthesis - Types
- Grouping by rule
- 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.
- Develop a descriptive category that makes analytic sense out of decisions involving diverse factual patterns.
- Based on degree
Defining the factors of a claim/defense
- Characterize facts in a way that explains the results
- Deductive pattern in writing: Tell general principle, followed by cases as authorities for conclusion.
- Always include explanation of statute�s terms
- Citation is required even for common knowledge (for legal reference)
- Full:Gage v. Atwater, 68 P. 581 (Cal. 1902)
- Full Pinpoint:Gage v. Atwater, 68 P. 581, 582 (Cal. 1902)
- Short:Id. At 582. (see above on usage)
Organization of legal discussion
Explanation of applicable rule of law (statutes or common law)
- Topic sentence should announce the elements, rule, principle
- Then paragraph details what that element means based on judicial interpretation in cases
Relevant case law
- Holding or synthesis of holdings from multiple cases where the rule of law (above) has been applied
- Start paragraph with topic sentence on legal principle, not with facts from a case.
- Topic sentence
- Pertinent facts
Application of law to the facts of your case (compare and contrast)
- Both cases must involve sufficiently similar facts, issues, reasoning, policy.
- Begin with transition sentence highlighting if you are going to compare (analogous) or distinguish the case.
- Examine relevent facts, argue to compare/contrast to your relevent facts to evaluate strength of comparison.
- Apply reasoning and policies of a decided case to your own.
Presentation and evaluation of counterarguments
- Precidents and facts that opposing counsel will be relying on
- Evaluate strengths of these arguments.
- Bad arguments
- Legally insignificant or incomplete facts, or misapplication of the law to the facts
- Relies on inapplicable reasons or policy arguments
- Good arguments
- Serve as a warning to our counsel
- Evaluate arguments and counterarguments to reach a conclusion on outcome of your problem
- Evaluate chance of winning the suit
- Focus on issue that has been under discussion.
Organization of legal memorandum
- Statement of facts regarding your case
- Legally relevant and background facts, all facts mentioned elsewhere in memo, procedural history. JUST THE FACTS, no analysis.
- Crutial information only
- Put in chronological order
- Don�t elaborate on detail � have to be concise. Don�t present long holdings here.
- Include what our client wants
- Question presented
- Issue (one or two sentences)
- Write in general terms � not naming parties.
- Identify people by relationships per cause of action.
- Number each issue
- Order of issues should be followed everywhere in the memo and should be logical in order
- Begin with short concrete subject quickly followed by an action verb
- Incorporate necessary facts
Short answer (see Neumann handout)
- Answer quesiton presented, add a sentence summerizing reason.
- Come to a conclusion, don�t discuss authority.
Applicable statutes (if any)
- Put in block form
- Begin with thesis paragraph (often repeats short answer/conclusion) � sets reader up for what is coming
- Topic sentence on claim
- General legal principle
- Application to rule
- Legal conclusion
- Relevant legal principles and policies
- Break each issue into sub issues, examine facts of cases and reasons for principles.
- Examine issues in logical order presented in Issues section.
- Organize sub issues also in a logical order
- Determine whether requirements for claim are satisfied by our facts, explain why.
- Examine current law, not historical
- Here is where we elaborate on holdings of prior cases
- Examine all interpretations possible, evaluate which are most persuasive
- Title (cover) page
- [See sample cover page, remember it must have a colored cover]
- Index number to case
- Lower court
- Party whose brief this is
- Name/address of attorney representing party
- Which issue we did
- Questions presented: Legal issues that will be argued, incorporating key facts of the case as they relate to the issue.
- Each member of the team prepares a (one) question
- Reference to statute: "Do the 1st and 14th amendments protect a member�from�"
- Question should appear neutral
- Locate noun near verb ("Is a statute valid�")
- Combined on one page, extra points if the questions are parallel. One question each.
- Clear, specific, persuasive
Table of Contents with page numbers
- Questions presented
- Table of Authorities
- Statement of the Case
- Summary of Argument
- Appendix (if any)
Table of Authorities: Page references for authorities relied on in Argument. Divided into categorites:
- [see Shappo for how to do this properly]
- 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
- Tells where to find decisions of the lower courts for this case.
Constitutional Provisions and Statutes Involved
- 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)
- Tell what happened from our point of view, but don�t be one-sided.
- Opening paragraph / Preliminary Statement
- Procedural information about how case got to the court (brief)
- Nature of action
- Parties involved
- Wrongs alleged
- Losses sustained
- Relief requested
- Type of order from which appeal is taken
- Statement of facts: Material facts from our perspective, arranged chronologically or topically then chronologically
- Allocate space per importance, emphasizing the good, de-emphasizing the bad.
- Use quotations and citations from the record
- Use emotionally significant facts (poverty)
- Be complete and tell the truth. No opinions � stick to the facts in the record.
- 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
- Begin with conclusionary statement setting out ultimate claim or claims you want the court to accept.
- Make claims about the intermediate steps that make up the arguments, explain briefly the reasons for each conlusion.
- Each point is an independent reason why I should win, 1 sentence, with subject and verb close together. Made in the affirmative.
- Tells issue, pertinent rule of law, legally significant facts, and conclusion on issue.
- Use active voice
- Break down point, written in form of a statement. Supplies specific reasons for general contention in an explanation, not just an assertion.
- Supply the rule.
- Do not use references.
Argument [15 pages each]
- Sections for each argument (start with best)
- Place after roman numeral but before A
- Introduction refers to proposition that paragraph is advancing rather than to the facts of a case.
- Should be assertive
- Sets out the law and weight of precedent or facts on my side
- Rule (lower court or precidence)
- Concisely summarize principle of law upon which you are relying
- Make sure reader understands relevance to issue in case
- Strongest cases first
- Treat extensively the best 2-3 cases
- Come to affirmative conclusion before raising and distinguishing unfavorable precedents
- Analyze to elicit a positive application of the law
- Treat favorable evidence in depth.
- Do not ignore unfavorable evidence, but put it forward, briefly and blandly, and provide an explanation if possible. Minimize unfavorable facts, bury in middle.
- Make counter-arguments affirmatively
- Avoid topic sentences that overemphasize other party�s arguments
- Demonstrate that practically, existing rule is not working well.
- Arguing in the alternative is fine (especially use for rational basis / strict scrutiny)
- Avoid stringing cites
- Cite to specific page (pinpoint cites)
- Must (ethical obligation) deal with adverse facts and cases, but bury it and keep minimal
- Brief, not a summary of arguments. Specifies relief
- Ends with "Respectfully Submitted" followed by our name, SIGNATURES, and address as attorney of record
- Be conclusionary