Searching for applicable law in four easy steps

The odds are you won’t find a magical, universally accepted approach to complete and thorough legal research. But many paralegals, law students, and attorneys use a simple approach that involves the following four steps:

1. Begin the research process by consulting legal dictionaries.

   Ballentine’s Legal Dictionary and Thesaurus, Black’s Law Dictionary, Words and Phrases, and William Statsky’s Legal Thesaurus/Dictionary are examples of some of the most popular tools you’ll use to come up with as many terms pertaining to the legal research problem as possible. Compile a comprehensive list of terms that appear to relate to the issues of the case. Include synonyms, antonyms, and other relevant expressions. This process is known as cartwheeling.

2. Determine which court jurisdiction the research problem involves.

   You need to figure out whether the research problem involves the federal or state court system. From there, you establish the specific level of court you’re dealing with in either system.

3. Discover the applicable law.

   The kinds of law resources you consult depend on whether you’re researching on the state or federal level. We give you more information about the specific resources listed here later in this chapter in “Tools of the Trade.”

   If the problem is a state court matter, research these resources:

   • Consult major legal encyclopedias. Obtain a better understanding of the nature of the case and obtain primary case and statutory leads through Corpus Juris Secundum and American Jurisprudence, 2d.
   • Obtain more leads in American Law Reports (ALR). You can supplement the material from the legal encyclopedias by checking this other secondary legal resource.
   • Find a digest topic, or topics, from West’s “Outline of the Law,” which is located at the beginning of each of West’s digests. The topics will lead to applicable state, regional, and federal digests, which in turn direct the researcher to primary authority.
   • Locate as many on-point court decisions from the state supreme court, appellate court, and federal court cases as possible and read the complete decision in the appropriate reporter. Remember that you might have a hard time finding on-point federal court cases when researching a state court matter because federal court jurisdiction differs from state court jurisdiction.
   • Apply any pertinent provisions of the state constitution and statutes as well as the U.S. Constitution and U.S. Code to the facts.

   If the problem is a federal court matter, expand your research:

   • Consult encyclopedias, ALR, and digests as you would for a state case.
   • Find and apply as many on-point federal court cases as possible. You can find the relevant federal court decisions handed down by the U.S. District Courts in the Federal Supplement. You can find cases coming from the U.S. Court of Appeals in the Federal Reporter. Locate any cases from the U.S. Supreme Court in the United States Reports (the official reporter of U.S. Supreme Court decisions), the Supreme Court Reporter, and the United States Supreme Court Reports, Lawyers’ Edition.
   • Apply any pertinent provisions of the U.S. Constitution, U.S. Code, and applicable state constitution and statutes to the facts of the problem.

4. Shepardize or otherwise validate each of the primary authorities you’ve found.

   To make certain that what you’ve found is still good law (that is, that subsequent court decisions haven’t overruled, modified, or reversed any of your authorities), use Shepard’s citations. Shepardizing may also point you toward additional on-point statutes or cases. Note: If you have access to Westlaw or Lexis Advance, you should consult these online update services because they’re usually more current than the Shepard’s volumes you find in the law library.

   When you look up cases in Shepard’s to determine if they’re still valid or to find other cases that may have followed or otherwise approved of the decisions, you’re doing what’s called Shepardizing, or checking the current status of a case.

Reining in the research process

Following an approach that includes the steps outlined in the preceding section allows you to successfully meet the challenges of legal research without resorting to too many aspirin tablets. Your main concern with legal research will soon become not where to begin a project, but when to end it. After you’re in a law library or logged in to an online legal research database, you may discover that you’re so inundated with information and so intellectually stimulated by tracking down the answers to the research problem that you lose track of time. Don’t get locked inside the library!

Answer these four guiding questions regarding how much time you spend on a research project:

• Have you found authority on-point? Like finding a needle in a haystack, the object of any legal research problem is to narrow in on mandatory primary authority that relates to your research problem. It may take 2 hours to find applicable law or it may take 20. But after you locate mandatory primary authority and properly validate it, you just need to integrate that authority into the research memo and present it to your supervising attorney.

• What is your legal research deadline? When you’re working under the gun to find the right case, the time constraint itself becomes a much more common determinant for ending a research project than finding the most applicable mandatory authority. Many law offices function in crisis mode, and the pressure of the deadline may preclude complete legal research.

  Unfortunately, because most law offices have a heavy workload, many attorneys are famous for waiting until the last minute to give research projects to their paralegals. So, much of the time, you’ll need to hustle to get in the most research in a limited amount of time. Very simply, your research task ends when your time runs out.

• Have you exhausted all available research sources? Paralegals and attorneys have ethical and financial incentives to perform the most thorough research possible in the quest for the answers to research problems. If the resources you find in the law library or with Westlaw and Lexis Advance consistently point you to the same cases or statutes, you can be pretty sure you’ve found the most pertinent law for your case.
• Can the client afford to pay for more of your time? One final factor governs your decision on how far to research an issue, and that’s the amount of retainer the client has provided or is willing to provide to the firm. When you’re assigned a research project, immediately check to see if your supervising attorney has suggested a time limit and report the status of your research to the attorney. Sometimes an attorney wants you to continue your research and won’t bill the client for the hours you go over.

Establishing a foundation with legal encyclopedias

Legal encyclopedias, like Corpus Juris Secundum and American Jurisprudence, 2d, help you get a broad understanding of the legal issue you’re researching and the relevant facts surrounding that issue.

First you find the general topic in the encyclopedia and scan through the text until you uncover a specific topic that matches your research problem. Then you consult the footnotes to find applicable cases as well as the current updated authorities in the pocket part, which literally appears in a pocket at the end of the book.

Don’t neglect to look in the pocket part of any legal research text. That little supplemental booklet in the back of the main volume contains any updates and new cases that have come out since the time the main volume was published.

Analyzing topics with American Law Reports

Each volume of American Law Reports (ALR), except for the index volumes, contains case opinions and articles entitled annotations.

In general, an annotation is a collection of explanatory notes and commentary on a topic of law.

The ALR annotation technique has evolved from the selective case system of legal reporting in which only cases of general legal significance are reported. The editors of ALR analyze and interpret these cases and place them into a current legal context. Today, each ALR annotation begins with the complete text of a recent appellate case that illustrates the annotated point of law. The annotations have become so informative and comprehensive that they have far eclipsed the importance of the illustrative cases in the reports.

The ALR staff writes or edits information in the ALR entries. This information includes a summary of the decision, headnotes, a listing of the appearances of counsel, several sample briefs of counsel, and the case opinion. Following the case opinion, you find the annotation, which collects and analyzes the law pertaining to the legal issue that relates to the annotated article.

Most ALR annotations include the following information:

• Total Client Service Library (TCSL) or West Key Number System references
• A table of contents for the annotation
• An index to the annotation
• A table of jurisdictions represented in the annotation
• The text of the annotation

When Thomson Reuters took over publishing ALR, it added the West Key Number System to the annotations. Prior publications use a similar system called the TCSL. We talk more about the West Key Number System in “Digging through digests,” later in this chapter.

You can use three main research approaches to find specific topics in the ALR volumes:

• Search by index. The Index to Annotations and the pocket parts lead to the specific legal category that relates to the issue you’re researching.
• Search by digest. The digests lead to synopses of the cases included in ALR by topic. The first and second series have their own digest, and the third, fourth, fifth, sixth, seventh, and federal ALR have a unified digest.
• Search by computer. Computer databases like Westlaw and Lexis Advance lead to ALR annotations.

After you find references, you can use the Annotation History Table to see if the annotations have been overruled or supplemented since the annotation was published.

Overall, ALR is an excellent source for beginning virtually any legal research problem. One major limitation is that it lacks comprehensiveness. Unlike encyclopedias and digests, ALR doesn’t discuss every area of law. However, ALR does annotate topics of law that are contemporarily significant. Also, ALR discusses them in a very thorough manner with references to cases from every jurisdiction that’s taken a position on the cited topic. The series is an indispensable research tool!

Digging through digests

You use digests to find relevant cases by topic. Thomson West is the primary publisher of digests, and its key-number digests are fundamental to the legal profession. Digests contain small summaries (much like the headnotes in reporters) of the points of law (arranged by topic and assigned a key number), but don’t contain the actual text of the law.

West’s digest system assigns a permanent key number to a specific point of case law, and every point of case law has its respective key number. The organization of the West Key Number System generally follows West’s Outline of the Law, which includes seven main divisions of the law and 414 subdivisions. You can answer most research questions by finding references to the pertinent case law in the key number digests and then examining the resulting primary authority in the appropriate reporter. Key Number Digests are among the most significant creations for accessing case law.

To use West’s digests, access the topic names and key numbers through one or more of the following means:

• The Descriptive Word Index: This index is usually located in the first volume of the set and refers to a topic name and a key number.
• The Topic Outline: If you’re already familiar with the topic being researched, use the outline because it further breaks down the listed topics to help you more precisely define your research.
• The West Key Number System: You can use this system to access a topic anywhere within the digest system, because after you find a key number that fits the topic, you can use it to transfer from one reporter to another, or from one digest to another.
• The Table of Cases: This table is usually located in the last volume of the set and is helpful if you know the name of an on-point case but don’t know the case citation.

In most cases, the West Key Number System is the fastest, most universally accessible approach to researching any digest or reporter. You can use the West Key Number System to find cases on a specific topic in any other jurisdiction included in West’s digest system. All you need to remember is the topic and key number for reference when you move back and forth between jurisdictions.

West’s digest system contains a number of different volumes available for research purposes. The West system digests federal court decisions, federal issues (in different specialized reporters), and regional decisions. The Key Number Digests also include state digests that cover all states except Utah, Nevada, and Delaware.

Although digests cover courts all across the country, use the most specific digest for your research problem. In other words, if you want to find case law that applies in an individual state, focus on that particular state’s digest before turning to the regional digests.

Rummaging through reporters

Digests point you to relevant cases and summarize their decisions, but you find the actual case decisions in a reporter. There are federal, regional, state, and topical reporters. In most reporters, the case begins with headnotes, which are short summaries of important legal issues within the opinion. You can use the headnotes to identify the issues of a case and maybe locate additional relevant authority by using the key numbers associated with the headnotes to refer back to the digest.

Headnotes aren’t part of the official opinion, so don’t quote them as authority in your memos.

Following the headnotes is a case synopsis, which summarizes the entire case opinion. After the synopsis comes the entire official case opinion. When you include case references in your memos, quote from the official opinion you find in the reporter.

Some reporters (like U.S. Reports) don’t contain headnotes and case synopses.

Keeping current with case citators

After you’ve found on-point primary authority, you have to validate that authority. Shepard’s Citations, along with similar validation services such as West’s KeyCite, provides a method of checking the status of a case in light of more recent legal developments. A citator provides a list of references to sources that have cited the cases you find. For instance, if your research exposes on point case, like Land v. Hill, 70 Wash.2d 80, 644 P.2d 43 (1961), you need to find out whether the case is still good law (that is, whether any subsequent cases have overruled or reversed the original case). To accomplish this important task, you look up Land v. Hill in a Shepard’s citator to find all the cases that have cited Land v. Hill, how those cases have treated it, and any history relationship between the cited case and the citing cases.

Validating is checking the current status of a case. You validate cases by looking them up in Shepard’s or using Westlaw’s KeyCite to determine if they’re still valid or to find other cases that may have followed or otherwise approved of the decisions.

Opting for other resources

Legal research doesn’t have many shortcuts. However, prior to accessing the five legal research tools, you should examine all available office form files and copies of previously prepared briefs on the same topic as you currently research a project to obtain leads to primary authority. You can also consult experts on the topic or other attorneys who’ve successfully litigated similar cases for leads to the proper primary authority. Other attorneys often accommodate a paralegal’s request for copies of briefs and other documents. This invaluable resource can jumpstart your often-overwhelming research project.

Your supervising attorney should reimburse experts for copy charges and other reasonable expenses incident to providing helpful information. And, to promote good will, you should offer to send a copy of the resulting briefs to the attorney who has contributed his expertise. Receiving leads and sample briefs from others who have been successful in similar litigation saves a firm and its client a considerable amount of time and money. Rarely do attorneys refuse to provide information to other attorneys. However, if the attorneys get overly protective of their work, you can always contact the clerk of the court where the previous action was filed and request copies of the pertinent documents from the court. Of course, be prepared to pay premium copying costs to the clerk!

Westlaw

Virtually any research you can do manually in a law library you can also perform on Westlaw, which makes any manual task much less time-consuming through the speed of computers and the convenience of having all research sources in one location: the computer terminal.

Although computerized legal research is expensive to access, it offers great flexibility and convenience for paralegals who lack adequate law libraries. Research databases allow paralegals to access a law library through their computers. And Westlaw, with its unique access to the West Key Number System, is one of the most effective research databases on the market.

Westlaw makes learning how to perform conduct online legal research pretty pain-free with its free trial access and training sessions. You can sign up for access with a paid subscription plan tailored to your specific needs. New databases and features appear on Westlaw regularly and products such as Westlaw Next use common language searches to streamline your research tasks.

To get answers to questions and keep pace with the new additions to Westlaw, you can contact West reference attorneys toll-free at 800-733-2889, seven days a week. Refer to the earlier section on Westlaw’s KeyCite if you want more information.

Lexis Advance

The databases under the Lexis Advance umbrella provide attorneys and paralegals with just as much power to conduct legal research as Westlaw. Lexis Advance allows the user to find case law, statutes, administrative rules, court rules, and a plethora of other legal resources. In addition, the Lexis Advance web-based service also provides access to news and business sources.

You access Lexis Advance pretty much the same way you do Westlaw. You first formulate your search query before signing on to Lexis Advance. Database services often charge the law firm by the minute, so make sure you know what you’re looking for prior to logging on!

After you’ve signed on, select a source of material where you want to conduct your search. You can search in certain areas of law, such as administrative law, constitutional law, or criminal law. You may limit your search to a particular jurisdiction, such as federal bankruptcy court decisions or only those court cases from a particular state or region. Or you can search the entire U.S. legal system.

Finally, Lexis Advance allows you to Shepardize your case to validate your results. Shepardizing your case ensures that you’ve found the latest cases and that subsequent court decisions have not overruled or reversed the authority you’ve found. It also helps you to find additional on-point authority.

And just as Westlaw has telephone support, Lexis Advance also has trained attorneys to assist you 24/7.

Bloomberg Law

Relatively new to the online research field is Bloomberg Law. This comprehensive subscription-based option is a viable alternative to the more expensive Westlaw and Lexis Advance products online legal research site that facilitates access to primary and secondary source material, time-saving practice tools and analytics, and more with an emphasis on law in a business context.

The online content contains links to Westlaw, Lexis Advance, Bloomberg Law, and other companies that offer online legal research subscription services.

The Internet

Many law school law libraries are available online, and social media, newsgroups, and email provide access to global communication. New information becomes available on a daily, and even hourly, basis. Attorneys and paralegals are finding that they can do a tremendous amount of legal research on the Internet.

You might want to simply experiment with some of the sites on the World Wide Web. One example is the Internet Legal Research Group (www.ilrg.com). This site organizes, categorizes, and indexes helpful legal websites and provides access to more than 2,000 downloadable legal forms and documents. Other sites such as Law Guru (www.lawguru.com) provide the user with a database of answers to commonly asked legal questions. Still other sites such as Findlaw (https://lp.findlaw.com) provide the user with court rules, statutes, court cases, and forms.

One word of caution — many of the sites on the Internet charge user fees to access the information that you find most useful for legal research, and the free information may be outdated. Plus, addresses for websites can change with little or no advance notice.

Although many privately run websites charge a fee to users of their material, a fair number of sites provide their information free of charge. Generally, government and educational sites provide access to state and federal statutes, cases, court rules, and more commonly used legal forms.

The online content contains a list of websites you can access on the Internet for legal research and other law-related information.

Citing statutes

The Bluebook gives a simple format for citing statutes. Keep the following rules in mind for federal statutes. In the official publication U.S. Code, write the volume number first, then write U.S.C., then the section number, and finally end with the supplement information in parentheses, like this: 42 U.S.C. § 1983 (Supp.III 1979). Avoid citation to the unofficial publication, although A Uniform System of Citation does recognize these styles: 12 U.S.C.A. § 635F (West Supp. 1981) and 8 U.S.C.S. § 43 (Law. Co-op. 1980).

A separate section of A Uniform System of Citation contains the format for citing each state’s statutes. You can easily find the citation format for a specific state by locating the state name in the table of contents and going to the proper page number.

Citing cases

A properly cited case is a joy to behold! It allows the supervising attorney, opposing counsel, or judge reading your memo to quickly access the cited material in the law library. When you cite a case correctly, you provide your reader with the following information:

• The parties to the litigation
• The court that decided the case
• The year the case was decided
• The publications where the case can be found and the volume number and page number of the publication where the case can be found

The following case citation is complete:

Konas v. Red Owl, 158 Colo. 29, 404 P.2d 546 (1965)

It states the parties involved in the action (Konas v. Red Owl). It states which court decided the case (the Supreme Court of Colorado). It provides the year the case was decided in (1965). It shows the publications where the case can be found (158 Colo. 29, 404 P.2d 546). Note that the first citation (158 Colo. 29) to the official Colorado Supreme Court reporter (Colorado Reporter) comes first. The first number (158) is the volume number, the next entry (Colo.) is the abbreviated publication name, and the second number (29) is the page number. The citation to the West regional reporters (in this case, Pacific Reporter, 2d, volume 404, page 546, as indicated by 404 P.2d 546) follows, even though most readers might be more likely to access the regional reporter to retrieve the case.

You need to underline or italicize the case name and separate it from the publication information by a comma. Also separate different publications by commas. Finally, put the date of the case in parentheses.

Nobody memorizes The Bluebook. It is, after all, a book! And much of it addresses citation format for international and foreign materials that you’ll probably never need to know. Judges and even your supervising attorney may have a citation style that slightly differs from The Bluebook. So, if you use a citation format that differs slightly from The Bluebook, just make sure it’s consistent and informative.