Archive for January, 2011

Basic Legal Research Method

Tuesday, January 25th, 2011

Basic Legal Research MethodLegal research is defined as the process of identifying and retrieving information that is required for supporting legal decision-making. Who performs Legal research? Well, it can be performed by lawyers, law librarians, paralegals or anyone who wants legal information. This legal information can be collected from printed books, online legal research websites and information portals that can be accessed for free or for a fee from database vendors (LexisNexis / Westlaw).

Legal research generally involves,

Finding primary authority (cases, statutes, regulations)

Finding secondary authority about a specific legal topic

Finding non-legal sources for supporting information.
There are many different approaches to doing legal research and there is no hard and fast rule to be followed while doing legal research. However here is a basic guide that may be generally followed by the researcher.

Start with a preliminary analysis of facts and start framing questions

Consult secondary sources

Evaluation of the research

Locating the primary authority

Re-evaluation of the research

Updating the research

Stopping the research

Follow Black letter law rules
During the preliminary analysis, one should identify all the facts and details of the people, place, and the acts involved besides familiarizing oneself with the related jargon. A proper understanding of all issues that is to be got via the research has to be made at the outset itself. Also one must identify the different legal theories, procedures and know about the specific relief that is being sought. For this various secondary sources / resources will have to be referred to, that may include treatises, law reviews and encyclopedias.

It is important to identify the right legal theories and see if these need to be modified or if new theories have been found that require us to do more research. Most importantly one must review and see as to what is the core legal theory that is being developed.

Location of primary authorities including court opinions/statutes and regulatory law etc may be done using different online and offline secondary sources including various digests and law publications authoritative paperbacks and study aids. This is again followed by re-evaluation and legal research / updation and must be repeated until one is satisfied. One of the important things while doing legal research is to always keep in mind the basic Black letter rules. The black letter law refers to the basic standard elements for a particular field of law, that is generally well known and free from doubt or dispute. Outsourcing of major legal research projects to offshore locations like India can help reduce the soaring costs of litigation.

Legal Research – How to Find & Understand the Law

Saturday, January 15th, 2011

Legal Research - How to Find & Understand the Law  “Legal Research: How to Find & Understand the Law” by Attorney Stephen Elias and the Editors of Nolo is another book in the huge legal library published by Nolo, a publisher that prides itself on making the law accessible to everyone. I’m an attorney, and I still like the books put out by Nolo, especially the ones on areas I’m not as familiar with, but want a little knowledge. Nolo always delivers.

Not everyone can afford Lexis or Westlaw, the two biggest subscriber based on-line legal resources. In law school we had access to both, because both companies wanted to earn your loyalty for when you got out and started practicing. Many firms have one or the other, and I suppose large firms may subscribe to both. Even with access to one of these, I find that I can often find things faster and easier with free resources. Many states have statutes and such on-line these days. More and more are becoming available all the time.

That’s where the book “Legal Research” comes in. It provides easy to follow research methods to help you answer your legal questions. The book has sections for on-line research as well as information regarding law libraries for those who have access to one.

The book consists of 386 pages divided among ten information packed chapters. The chapters include:

One: Understanding the Basics of the Law. Brief descriptions of what the law is, sources of law, state versus federal law, and the court system. Too basic for an attorney, but for the layperson the book was written for, this is a good introduction.

Two: Finding Legal Resources. This chapter explains where legal information is located, primary and secondary sources, internet resources for legal topics, and legal research websites. It includes Lexis and Westlaw, but also other sites that are free. I like the tips and warnings through out the book as well. Good caution that not every opinion you find is good law. Obvious to someone who had it drilled into them during law school, but probably not known to many laypeople.

Three: Identifying Your Legal Issue. Things to know before you go looking, like is the case civil or criminal, figuring out the area of law you want to research, what resources will help you with what you need to find, and figuring out your legal research question. This is important, you want to know what you’re really looking for before you go searching.

Four: Finding and Using Secondary Sources. This chapter explores sources such as online resources (including a bit about deciding if reliable), self-help legal books, legal encyclopedias, form books, practice manuals, continuing legal education publications, law reviews, and so on. Many law firms will have a lot of these kinds of resources, and you will find even more at a law library. This chapter gives a brief overview of what these sources are.

Five: Finding and Using Constitutions, Statutes, Regulations, and Ordinances. These are the bulk of legislatively or administratively created law. This chapter explains how to find these resources and how to use them. It covers finding and using constitutions, finding federal statutes, finding state statutes, understanding them, finding regulations and other rules and ordinances. All of these are important depending on your particular issue. This chapter is a good introduction to this world of “laws” for those that are charting unfamiliar territory.

Six: Finding Cases. Some of our law is not found in statutes, but in the decisions of cases that have already been decided. These cases interpreted laws and are now the rule until legislature changes it, or another case overrules it. Roe v. Wade is an example of a famous case that is looked to regarding abortion law. This chapter helps the reader learn how to use citations to find cases, find cases on the internet, find cases in the law library.

Seven: Using Case Law. This chapter actually explains what a case is, how they are published, and how cases affect later disputes. If you matter relies on case law, this chapter will help you.

Eight: Validating Your Research. I pointed out the tip earlier, and this chapter goes further to help you make sure you have “good law.” It teaches you how to Shepardize a Case, a process we lawyers use to ensure the cases we are relying on are still good. If you are trying to make a case yourself, you must be sure you are relying on “good law.” These are the kinds of things lawyers know that many laypeople don’t.

Nine: Organizing and Putting Your Legal Research to Use. One thing clerks, legal interns, and associates spend a lot of time doing is research. Once you find the information, you must put what you find in written form for those that asked you to find it. This chapter provides the basics for writing a legal memorandum. Not as thorough as the semester class most first year law students take, but good for the non-lawyer. There is a brief section about going to court and the court process and about a couple pages on finding and working with a lawyer.

Ten: Research Hypothetical and Memorandum. Maybe it is because lawyer learn by case studies and examples that this chapter provides a research problem, how to discover the facts, and then how to approach the question to research. It’s very short, so it will give the non-lawyer a little example of how to look at the law and go about finding your answer.

The book chapters stop here on page 255. The next 100 plus pages is a glossary, which a person would not need if they have a legal dictionary. Nolo actually has a simple legal dictionary that won’t replace “Black’s” but is a good resource. Then there is a short appendix on topics and an index.

Overall, I think this book could be very valuable for the person who wants or needs to do legal research but does not know where to start. If you are forced to do-it-yourself, this guide can lead the way. It is a very good description of the legal research process for those without a law degree.

PACER and Online Legal Research

Wednesday, January 5th, 2011

PACER and Online Legal Research  PACER stands for Public Access to Court Electronic Records. It is an Internet based service that lets a legal research professional or anyone else to have access to case and docket information from District and Bankruptcy courts, the U.S. Party/Case Index and the Federal Appellate. Being a service of the US judiciary, the PACER service center offers links to all US courts and the different data bases that are maintained by each one of them. It is also a very quick and easy service and one can get many important case details at PACER. What are the types of details available?

Day wise listing of cases

Case record dates and details

Claims registry

Cause of action/ money demanded etc

List of all judges, attorneys trustees etc

Judgments

Case document type details

Copies of documents

Court opinions
The United States Congress has given the Judicial Conference of the United States the authority to collect a fee for electronic access to information on a case. Thus all the individuals or agencies who register are charged a user fee. This paid service offered by PACER is very useful for the litigators, legal research and law communities. Instant registration can be done online on the official pacer website. During legal or litigation research, services like PACER are very convenient because it is an inexpensive method of accessing precedent database that is for ever growing.

Each court maintains its own databases with case information and a small subset of information from each case is transferred to the U.S. Party/Case Index that is located in San Antonio, Texas at the PACER Service Center, server on a daily basis. How are the records sent? Records are submitted to individual courts using the (CM/ECF) system (Federal Judiciary’s Case Management/Electronic Case Files) and usually accept the filing of documents in PDF Format through the courts’ electronic filing system.