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Before Beginning Legal Research CHAPTER OBJECTIVES
After reading this chapter, you should be able to:
• Understand the importance of legal research.
• Explain the purpose of legal research.
• Understand how legal research is used by the attorney.
• Understand the role of the paralegal or legal assistant as a research assistant.
• Identify the process of legal research.
The mastery of legal research is one of the most critical skills sought in people seeking em-ployment in a legal environment. Most legal documents will require the locating, analyzing, and communicating of the law by legal professionals. This task is usually completed by para-legals and legal assistants. This chapter will demonstrate how to establish a starting point from which to launch your legal research.
Chapter 1
THE PURPOSE OF LEGAL RESEARCH
Why do legal research at all? What is the big deal? Doesn’t the judge know all the law? It can’t be that complicated, can it? Legal research is important because the law is important. The law is made up of rules and procedures that govern our daily lives. The law is complicated, but legal research will allow you to cut through it and make effective arguments to the judge. Ethical codes and rules require legal professionals be competent, and legal research ability is part of that competence.
THE COURT MAY NOT KNOW
One of the biggest misconceptions about the law is the notion that the courts know everything there is to know about the law. Courts are run by judges, who are human beings. No one has ever read all of the existing cases, statutes, regulations, and other sources of the law. Moreover, the law is always changing. It is so vast that no one person can ever know all of it. The best one can do is research the law, thoroughly. Just because judges can’t know everything, however, does not mean they don’t know anything. In the same way that the average paralegal knows more law than the average layman, and the average lawyer knows more law than the average paralegal, so the average judge knows more law than the average lawyer, and thus is worthy of respect. However, because
2 Chapter 1 Before Beginning Legal Research
judges don’t know every law, they can be convinced by an effective argument. The wise advocate tactfully makes the judge aware of the law, to the advocate’s—and the advocate’s client’s—advantage.
LEGAL KNOWLEDGE AND RESEARCH
Attorneys spend a great deal of time learning about the law. However, no matter how much time someone spends studying it, it is impossible for anyone to know all the law about every topic and from every jurisdiction. Hence, even the most experienced attorneys must be able to do legal re-search. In addition, the law changes constantly. Every year thousands and thousands of laws change all over the United States. These changes could be anything from a city ordinance to a U.S. Supreme Court ruling. In order for a lawyer to make proper representations to courts of the status of the law—as it relates to their clients’ cases—it is imperative for them to be able to stay abreast of the continual changes in the law, especially in the jurisdiction in which they practice. The process of finding the law is called legal research. Attorneys are required to prepare legal documents as well as appear in court. The legal re-search that they use in their craft must be appropriate, relevant, and up-to-date. Basing a client’s case on bad legal research and analysis could lead to the following: losing the client’s case; a loss of reputation; embarrassment; sanctions by the court; and, in some cases, malpractice suits, dis-barment, or some other disciplinary action. Good legal research is extremely important to the attorney because their license to practice law could be on the line. Attorneys are typically charged with handling numerous cases at the same time. Their time is valuable and limited. Therefore, many attorneys rely on paralegals and legal assistants to handle the time-consuming and often tedious job of conducting legal research. The research conducted by a paralegal or legal assistant is extremely important. The attorney will use the research gath-ered by staff members to advise clients, write legal documentation, and argue in court. Accuracy and thoroughness in this research is expected and valued.
For lawyers in most states, Rule 1.1 of the Rules of Professional Conduct generally requires lawyers to provide competent representation to their clients, including the thoroughness and preparation rea-sonably necessary for competent representation. For lawyers in the few states still governed by the Code of Professional Responsibility—Disciplinary Rule 6-101(A)(2)—generally requires that lawyers not handle legal matters without adequate prepa-
ration. The only way for a lawyer to be fully pre-pared to discuss a specific matter of the law and, if necessary, argue about it on behalf of a client, is to have engaged in competent legal research. When a paralegal is engaged in legal research for a lawyer, under the supervision of the lawyer, the paralegal is engaged in one of the most important legal activities in which a paralegal is permitted to engage.
Eye on Ethics
A local accounting firm has come to the law firm where you work seeking representation in a lawsuit. It seems three for-mer employees of the accounting firm are suing the firm for physical injuries and damages that they sustained as a result of exposure to second-hand smoke in the office. The employ-ees do not have individual offices, but each has their own cubicle. The firm has designated a smoking area within the building that is separate and down the hallway from the
Case Fact Pattern
employee cubicles. Employees of the firm are required to re-main in the smoking area when smoking in the office. How-ever, smoke travels throughout the office. The former employees claim they were exposed to second-hand smoke and developed physical ailments that they allege are a result of this exposure. The attorney assigned to the case has asked you to research the pertinent issues as they relate to current laws and to relay your findings in a legal memorandum.
Chapter 1 Before Beginning Legal Research 3
Lawyers rarely research the law for academic purposes. Their research centers on the facts of a client’s case. As such, it is not enough just to find the law—the law must be analyzed as it per-tains to the facts of the client’s case. The lawyer must research and analyze the law so the legal argument portrays the client’s position in the most favorable light. The argument can take the form of written documents such as pleadings filed with the court, or oral arguments as in the closing argument given in a court trial. Whether written or oral, it is very important for the law that has been uncovered to be analyzed as it relates to the client’s case. The legal research process is comprised of the following steps:
• Identify the pertinent facts in the case at hand.
• Identify the legal issue to be researched.
• Find the law applicable to the legal issue.
• Analyze the law as it relates to the legal issue and facts of the case at hand.
• Communicate the findings of the research and analysis.
GETTING STARTED
How does the legal professional begin legal research? A good researcher must ask some basic questions when given an assignment. The first question should be “What is the deadline for this assignment?” All legal research assignments will have deadlines. The attorney may have a dead-line to file a pleading with the court, they may appear in court, or they may simply be trying to decide if they want to take on this particular client’s case. The amount of time available will shape the overall approach to the legal research assignment. A researcher faced with a tight deadline must effectively manage time to finish the project by the said deadline. Another important consideration is the form of the final research product. In the case fact pattern described earlier, the attorney has asked the research take the form of a legal memoran-dum. Other forms, that could be required, include briefings of pertinent case law or legal plead-ings and briefs. Whatever the form, it is important to be clear on what the final work product should look like. What is the scope that the research should take? Does the attorney want it limited to case law, statutes, or administrative procedures? Should online research tools be utilized? Some clients may not want to pay the fees and costs associated with having the attorney use online research tools such as Lexis or Westlaw. Understand the parameters under which the legal research should be conducted and stay within them. An important consideration is which jurisdiction controls the incident. The jurisdiction can limit or expand the research depending on the facts. For example, in the client’s case presented in the case fact pattern, many cities have local smoking ordinances that may control the issue. The scope of the research could be limited to city ordinances. Is it a state or federal issue? Jurisdic-tional determinations are extremely important when conducting legal research. The legal re-searcher must avoid spending time researching a legal issue using the wrong types of legal materials. Remember, most attorneys and legal practitioners have done a fair amount of legal research during their careers. These practitioners are a good source of information about where to get started. An attorney with substantial experience in an area of law can significantly reduce the
legal issue The point in dispute between two or more parties in a lawsuit .
legal issue The point in dispute between two or more parties in a lawsuit .
A paralegal or legal assistant is not permitted to offer legal advice because they are not licensed to practice law. While paralegals and legal assis-tants work under the supervision of attorneys, giving legal advice is outside the scope of their knowledge and is unethical. A paralegal or legal
assistant who gives legal advice is engaging in the unauthorized practice of law, which is illegal and can result in criminal punishment in some jurisdictions. The job of advising the client must be left to the person licensed to practice law: the attorney.
Eye on Ethics
jurisdictionThe power or authority of the court to hear a particular classification of case.
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amount of time spent researching an issue by pointing you to past research which may only need to be updated. Asking an attorney or legal practitioner where to begin can prove invaluable.
HAVING A BASIC PLAN
It is very important to outline a basic plan or strategy to legal research. There are important steps necessary to design a well thought out approach. The temptation exists to delve into legal au-thorities looking for pertinent legal research, but a good researcher takes time to think about the facts and develop a plan. Specific legal strategies will be discussed in the next chapter.
CREATING A LIST OF VOCABULARY TERMS
Every case will lend itself to creating a list of pertinent vocabulary terms. Some of these terms can be factual terms such as “second-hand smoke,” while others may be legal terms such as “wrongful termination.” It is important to sort through the facts of the case and sepa-rate the vocabulary terms into these two sections. Once you have determined the legal vo-cabulary, it will be easier to determine the legal issues based on them. The factual vocabulary will help you analyze the law as it relates to the facts of the case. Do not be concerned if you are not sure if a vocabulary term is factual or legal. Write it down where you think it fits best. As you conduct your legal research, the authorities will assist you in determining if you are correct.
FORMULATING THE LEGAL RESEARCH ISSUE
If possible, attempt to identify the legal issue that needs to be researched. A good legal issue will contain the legal problem along with key facts. Think about your case and try to determine what the legal issue may be, as well as the key facts that support that issue. Again, do not be so con-cerned about being right or wrong. Your research will assist you in determining the proper course. The purpose of initially articulating a legal issue is just to get you started with your research. Your legal issue does not have to be a formal statement. It is simply a way to organize your thoughts and get you started. It is a preliminary assessment of the problem established by the facts of your case.
strategy A method for making, doing, or accomplishing something.
strategy A method for making, doing, or accomplishing something.
CYBERTRIP
You may obtain pertinent informa-tion regarding your vocabulary terms by searching them online. Various Web sites, both legal and nonlegal, can offer great assistance in learning more about your term. Some useful sites are
• www.google.com
• www.findlaw.com
• www.answers.com
The case fact pattern presented at the beginning of this chapter involves current topics. Many cities are enacting ordinances banning smoking from areas of the building, entire buildings, restaurants, and even beaches. For instance, Los Angeles has had smoke-free environments for years and the famous beach of Santa Monica is smoke-free. For facts regarding this area, the first place to begin legal research would be the local city ordinances. The issue of someone being harmed by inhaling second-hand smoke has been surging into the news lately. Even though this issue is timely, no law may have been created on this topic as of yet. Research of factual issues can help guide the attorney on how best to frame his client’s argument. Maybe your client’s case will be the first one in this area and thus establish a guideline for all those that follow.
A Day in the Life
Examine the factual issues in the case fact pat-tern concerning the former employees and their
RESEARCH THIS
allegations regarding exposure to second-hand smoke.
Chapter 1 Before Beginning Legal Research 5
WRITING OUT YOUR PLAN
In order to proceed in an organized and efficient manner, it is important to write out your research plan. Your written plan should consist of the following:
• A vocabulary list of both factual and legal terms
• An initial legal problem or issue
• An outline of the sources to be checked to gather the law
Once you have created your vocabulary list, look up the terms in a legal dictionary and a legal thesaurus. These two sources will help expand your knowledge and your list of identifiable terms to search. Your vocabulary lists will also assist you in efficiently checking the indexes of the various sources of legal research to find the law pertinent to your facts more quickly. Being organized and having a plan is essential to beginning your legal research. Keeping a record of the sources in which you are conducting your search, along with the results, can be extremely beneficial so that you do not duplicate your efforts. For example, you might create a table to track the sources you searched and the cases that were cited for each source. Figure 1.1 is a sample Search Record Table. As you conduct your searches for either your factual or legal terms, write down the sources as you review them along with pertinent cases that are cited in each source. Using such a table will enable you to streamline your research efforts.
Attorneys spend a great deal of time learning about the law. However, no matter how much time someone spends studying the law it is impossible for anyone to know all the law about every topic and from every jurisdiction. Therefore, even the most experienced attorneys must be able to do legal research. To add to this, the law changes constantly. Every year, thousands and thou-sands of laws change all over the United States. These changes could be anything from a city ordinance to a U.S. Supreme Court ruling. In order for a lawyer to make proper representations to courts on the status of the law as it relates to their clients’ cases, it is imperative for them to be able to stay abreast of the constant changes in the law, especially in the jurisdiction where they practice. The process of finding the law is called legal research. The legal research process is comprised of the following steps: (1) identify the pertinent facts in the case at hand; (2) identify the legal issue to be researched; (3) find the law applicable to the legal issue; (4) analyze the law as it relates to the legal issue and facts of the case at hand; and (5) communicate the findings of the research and analysis. Remember, most attorneys and legal practitioners have done a fair amount of legal research during their careers. These practitioners are a good source of information about where to get started. An attorney with substantial experience in an area of law can significantly reduce the amount of time spent researching an issue by pointing you to past research which may only need to be updated. Asking an attorney or legal practitioner where to begin can prove invaluable. It is very important to outline a basic plan or strategy to legal research. There are important steps necessary to design a well thought out approach. The temptation exists to delve into legal authorities looking for pertinent legal research, but a good researcher takes time to think about the facts and develop a plan.
Summary
FIGURE 1.1 Search Record
OtherSource
SearchedOther Source Case CitesSource
6 Chapter 1 Before Beginning Legal Research
Review Questions
1. Why is it important to conduct legal research?
2. What can happen to an attorney who argues bad law?
3. Can paralegals give legal advice to clients under the supervision of an attorney?
4. What is a legal issue?
5. What is the first question that should be asked when given a research assignment?
6. Why is jurisdiction important to legal research?
7. Why should you create vocabulary lists?
8. Define strategy.
9. A research plan should have which three elements?
Key Terms jurisdiction 3 legal issue 3
strategy 4
Exercises 1. Create a research plan and vocabulary lists for the assignment given in the case fact pattern presented at the beginning of this chapter.
2. Look up in both a legal dictionary and a legal thesaurus all vocabulary terms you created for the case fact pattern and expand on the terms created. Create a legal issue.
3. Write down a list of places you might search when researching the issues in the case fact pattern presented at the beginning of this chapter.
Find and circle the following terms in the subsequent word search puzzle. The terms may appear up, down, sideways, or diagonal, and forward or backward, ignoring any spaces in phrases.
Vocabulary Builders
ATTORNEY, JURISDICTION, LEGAL ISSUE, PLAN, STRATEGY, and VOCABULARY LIST.
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