Chapter 13 – Finding the Law

Online versus Traditional
Book-based Legal Research

• If your starting point is anything other than a known citation to relevant authority, you generally starts a book search in an index. If online, you search for terms that you assume the authors themselves used when writing the legal authority.
• If you rely on books, then by default as soon as you select a text, you have also selected a jurisdiction and type of law.  Online, your results will include all types of law from all fifty states and the federal government.
• it is easier to move from one resource to the next if you do your research online.
• A final major difference is in the way the materials are kept up-to-date—books are updated much more slowly.

Major On-line Providers

• Commercial fee-based services. The two best known are:
  • Lexis (Lexis Advance)
  • Westlaw (Westlaw)
• Free Internet-based services:  The federal government and many state and local governments maintain web sites where they publish official documents. In addition to the government web sites, particularly useful, fairly complete, and most importantly, free, sites include:
  • Legal Information Institute (Cornell School of Law)
  • FindLaw
  • The Public Library of Law
  • Google Scholar

Overview of Research

• Looking for and finding:
  • Primary authority:  The law itself, such as statutes and court opinions. (e.g. statutes, opinions)
  • Secondary authority: Information about the law, such as that contained in encyclopedias and law review articles. (e.g. encyclopedia and law review articles)

Six Steps of Legal Research

• Define the legal problem
• Go to secondary authority
• Create a list of search terms
• Go to primary authority
• Decide when to stop researching
• Update your research

Identify Search Terms

• TAPP (Things, Acts, Person, or Place)
• TARP (Thing, Cause of Action, Relief, Parties)

Go to Secondary Authority

• National Legal Encyclopedias
• State-specific encyclopedias
• Special subject encyclopedias, treatises, and restatements
• Legal periodicals and newspapers
• American Law Reports (A.L.R.)

Citing Secondary Authority

• Do not cite Encyclopedias unless no other authority exists
• Cite secondary authority that evaluate and analyze the law
• Most authoritative secondary sources are Restatements, law review articles by known authorities, and treatises

Go to Primary Authority

• Research statutes with use of:
  • Citations
  • Indexes
  • Annotated statutes
  • Pocket parts

Go to Primary Authority

• Find state agency regulations by:
  • Researching available subject matter index
  • Consulting agency directly
  • Consulting governmental/agency website

Go to Primary Authority

• Find court opinions with:
  • Citation or name
  • Summary following a statute
  • Digest

Update Your Research

• Use digest topics and key numbers
• Use Shepard’s
• Use both digests and Shepard’s

Decide When to Stop

• Time to stop when:
  • Keep finding same references in different resources
  • New resources no longer give you new citations

Research Involving Federal Statutes and Regulations

• Use same pattern as state law research:
  • Determine search terms
  • Consult index
  • Review federal annotated codes
  • Review code of federal regulation

Computer Search Techniques

• Determine which database to use
• Search a database using:
  • Terms and connectors (Boolean operators and connectors)
  • Natural language

Answers to Chapter 13 Questions

• What are the four major differences between book-based and online searches?
  • While book-based and online search follow the same methods, there are essential differences between them.  First, book-based research starts with an index while online searches start with search for key terms.  Second, book-based research is limited to the jurisdiction and the type of law while online searches are not limited as it can include the 50 states and the federal government.  Third, doing research online is faster and less time consuming compared to book-based research.  Book-based research is updated slowly compared to the use of commercial online resources such as Westlaw and Nexis (Currier and Eimermann 381).
• What are the two major online legal research providers?
  • Westlaw and Nexis are the two major online legal research providers (Currier and Eimermann 381). 
• What is the limitation of many of the free online legal research website?
  • Because the companies managing Westlaw and Nexis require subscription fee, these research providers are more comprehensive compared to free online legal research website. 
• What is your main goal when conducting legal research?
  • The goal of legal research is to find primary authority which is the court opinions and the enacted law itself on the particular topic (Currier and Eimermann 383). 
• What is the difference between primary and secondary authority?
  • Primary authority refers to the law itself such as the statutes and the court opinions (Currier and Eimermann 383).  Secondary authority refers to information about the law such as those that can be found in encyclopedias and legal review articles (Currier and Eimermann 383).
• Your boss represents a client who was injured when his Handy Handy riding tractor tripped over. You searched through the online sources that contained primary authority but did not find any appellate decisions involving the Handy Handy riding tractor.  In what order types of online database might you want to search and why?
  • I should check secondary authority as well.  Secondary authority may yield important background information that may help with the suit.  For example, newspaper articles can bring information that Handy Handy riding tractor has been involved in several suits.
• What is mandatory authority?
  • Mandatory authority refers to a statute or a court opinion from a higher court in the same jurisdiction (Currier and Eimermann 383).
• What are the six basic steps of legal research?
  • First, the researcher should define the problem he is asked to solve.  Second, review secondary sources to obtain background information and references to primary law.  Third, create a list of search terms.  Fourth, go to primary sources such as constitution, statutes, administrative regulations, and court opinions.  Fifth, decide when to stop.  Sixth, update the research to make sure that the results are up to date. 
• In what type of sources can you read general background information on a particular legal topic
  • There are many secondary sources to obtain general background information on a particular topic.  Among these sources are encyclopedias such as the American Jurisprudence Second and Corpus Juris Secundum, Restatements, American Law Reports, Law Reviews and newspaper articles (Currier and Eimermann 385-386).
• 10  How does the ALR differ from encyclopedia?
  
  • American Law Reports contains the full text of a leading court opinion including a discussion of the issue with reference to the case.  Though only selected topics are covered, the issues are discussed in-depth.  On the other hand, encyclopedias cover a wide range of topic but they are not covered in depth (Currier and Eimermann 386).
• What is a law review, and what types of articles does it contain?
  • A Law Review is a journal published by a law school editorial board or by a bar association on a specific area of law.  Since its written by law professors with notes and contributions by the brightest law students, they offer very high value as a research material.
• Why do you think the general rule is that it is appropriate to cite a law review article but not an encyclopedia?
  • As stated, all secondary sources are not created equal (Currier and Eimermann 386).  A law review article offers higher value because it is more detailed in its scope.  On the other hand, an encyclopedia is a more general discussion of a topic but lacks details.
• When thinking of terms to use in your search, why is it a good idea to think of as many terms as possible?
  • The search is more effective when the legal researcher has prepared a set of key terms.   Using as many combinations of terms as possible allows the researcher to capture as many ideas.
• When researching primary authority, should you generally begin your research with statutes or court opinions? Why?
  • It depends.  When there is a specific statute that covers the main legal problem, I should start with the statute because the courts cannot ignore the statute.  If there is no specific statute, then I should look for court opinions that discuss the legal problem I am working on.
• What makes an annotated statutory code “annotated?”
  • A statutory code is annotated when the publishers include the text of the law and editorial features such as the summaries of court opinions interpreting the statute.
• What are five methods for finding a court opinion when you do not know its citation?
  • If the legal researcher does not have the court opinion’s citation, there are five methods available. First, locate secondary sources which include references to case law.  Second, check the annotated version of the statute and get the citation from this source.  Third, if the legal researcher one of the party’s name, he can utilize a table of cases to find the full citation. Fourth, use digest to locate relevant cases by subject matter.  Fifth, use online resource such as Westlaw and Nexis. 
• If you have the citation for a court decision, how do you locate it in the books? Online?
  • If there is a citation, court opinions and decisions are published in court reporters.  For state court decisions, court opinions are published in official government-published reporter and unofficial regional reporter.  Free online sites will give you access to court opinions if there is a citation.  However, if the case is older than mid1990s, the legal researcher needs to utilize Westlaw or Nexis.
• If you know the name of one party to a case, how do you locate it in the books? Online?
  • In Lexis or Westlaw, the legal researcher can simply type the name of one of the parties to the case on the search box.  The search will generate different names where he can scan the case he is searching one by one. 
• If you have both the case name and its citation, why should you begin research by using the citation?
  • When the legal researcher has both case name and citation, it is relatively easier to begin the research by using the citation.  When the researcher has citation, all he has to do is to type the exact citation to see the case he is looking for. On the other hand, using the case name may generate different cases involving the same parties which may not be what the legal researcher is looking for. 
• How are digest summaries and headnotes similar? What is the function of each?
  • Essentially, the case summary and the headnote perform the same function of helping the legal researcher find the case opinion he needs for his legal problem.  The headnotes are found at the beginning of each decision which summarize the court opinion.  The case summary is more comprehensive because it includes not only the gist of the court decision but also the procedural history and the procedural disposition of the case.
• Assume you are researching the topic of whether minors can get out of their contractual obligations and that you have found a New Hampshire case directly on point. That case’s third headnote lists the topic as Contracts 211 How would you go about locating a Kansas case dealing with the same issue?
  • Since I do not have any citation for the statute I will begin my search by going to the subject matter index of the Kansas General Laws Annotated to check on the subject matter Contracts 21.  I might go online and try to type Contracts 211 and Kansas. 
  • Since I already have key 7 (10) which talks about the utilization of electronic tracking device without court approval which can be justified depending on the presence of probable cause, I should go to Massachusetts digests and look under the Searches ad Seizure and key number to find any other case that deal with the same topic.
• What is involved in doing a terms and connectors search?
  • In doing a terms and connectors search, it is essential to locate the key terms to be used and connect the key terms using connectors.  The two most common Boolean connects are and and or.
• You need to find cases dealing with free speech, and using the terms and connectors method, you type in the following search: fee speech. How do you think Westlaw and Lexis would differ in the ways they would interpret that search request?
  • When the legal researcher types the word free speech, Westlaw considers it as an or.  Thus, it would find materials where either the word “free” or “speech” is found. It will not locate both.  In Lexis, use of the word free speech means that it will locate materials where both the words are found.  Thus, it is an and search instead of or. 
• When do you know you can stop searching?
  • A legal researcher will know that it is time to stop searching when he keeps on landing on the same references.  For example, if the legal researcher continues to get the same court opinion from annotated codes, encyclopedias and state digests, then he can stop searching (Currier and Eimermann 402). 
• If you do your search in books organized by subject matter, what should you consult to update your research?
  • If the legal researcher is searching using books organized by subject matter, he should check the pocket part to update his research.  For example, if the book is organized by statute, the pocket part is essential as it may contain recent court opinions interpreting the said statute (Currier and Eimermann 402).
• What is a citator?
  • A citator is an essential tool in legal research because it helps determine whether the research is complete and up to date.  For example, citators are used to determine the validity of a statute or a case law. 
• What is the difference between saying a case has been reversed and saying it has been overruled?
  • When a decision has been reversed, it means that the case has been appealed by the parties to a higher court and the higher court disagrees with the decision of the lower court.  On the other hand, a decision has been overruled when the same court that issued the decision changes the law so that the prior decision is no longer a good law (Currier and Eimermann 403)
• In Shepard’s what is subsequent history, and what is the treatment of a case?
  • Subsequent history refers to any information that happened procedurally to the litigation after the case was cited.  For example, did the appellate court modify, affirm, or reverse the case?
  • The treatment of a case refers to how a subsequent case involving different litigants interpret the case.   The purpose for checking the treatment of the case is to find out if the legal principle on the subject case is still a good law (Currier and Eimermann 404). 
• In Shepard’s to what do the terms citing case and cited case refer?
  • The citing case is the case that affirms, distinguishes, criticizes and follows the cited case.  The cited case refers to the first case or the subject of the research.
• What advantages are there to using Shepardizing online or Key Cite rather than using the book-based Shepard’s
  • Using Shepard online or Key Cite, the legal researcher is immediately alerted to the negative history or the treatment of the case.  Is the case affirmed, followed or reversed in subsequent history? Us of Shepardizing online is very simple process (Currier and Eimermann 404).
• 32  If you update using a citator, why might you not final all of the relevant cases on your topic?
  
  • If you update only using a citator, you will be limited in your research on the court opinions that cited your case.  The legal researcher will not be able to find any recent discussion about the topic or subject matter of the case if the subject case is not mentioned (Currier and Eimermann 406)