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PUTTING IT ALL TOGETHER Research from Start to Finish. “There must be some law on this. Write me a memo.”. You know more than you think you do. Don’t panic!. The Research Process is Recursive. Research Process is Recursive. Get familiar with the problem “Pre-research” governing law

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Presentation Transcript
slide3

You know

more than

you think

you do.

Don’t

panic!

research process is recursive
Research Process is Recursive
  • Get familiar with the problem
  • “Pre-research”
    • governing law
    • substantive area
  • Initial search for authorities - preliminary understanding of legal context
  • Refine understanding
  • Focus search for authorities, updating, etc.
a little advice make friends with your court or firm librarian
A little advice – make friends with your court or firm librarian.
  • Attend the library orientation.
  • Ask about in-house databases, newsletters and practitioner materials on your topic.
  • ASK QUESTIONS!!
before you begin understand the assignment
Before you begin - Understand the assignment
    • Get familiar with your problem
    • Listen and take notes
    • Read underlying documents
    • Ask questions
  • Resources – online or print? Money constraints?
  • Time Frame?
before you begin

Before you begin - Plan your research

Before you begin –
  • How much time?
  • Which resources?
  • Terms of art?
  • Search queries?
get familiar with your problem pre research analysis
Get familiar with your problem:Pre-research analysis
  • What general area of law am I dealing with? Do I know anything about this area?
  • Does my workplace have a central electronic file of memos, briefs, forms, transactional documents, etc.?
  • Is an in-house expert willing to talk with me?
  • Federal law or state law or both? If state law, what state?
analyze the facts
Analyze the Facts
  • Analyze the facts (who, what, when, where, why)
  • Preliminary Analysis
    • Inter-relationship between legal theory and facts
    • Relief client seeks
    • Procedure
  • Make an Outline
initial search for authorities
Initial Search for Authorities
  • May be unnecessary given results of pre-research
    • In-house document may explain legal context
    • In-house expert may help understand legal context
  • If area is unfamiliar, begin with what you know & what you have easy access to -
refine understanding of problem
Refine understanding of problem
  • Ask more questions in light of initial research
    • Factual questions
    • Type of transaction
    • “Reality-test” ideas (if you have a sounding board)
  • Scope out further lines of research, e.g.:
    • Additional cause of action
    • Additional legal theory
more focused search
More Focused Search
  • Itself a recursive/reflexive process
    • Use finding tools
    • Locate authorities
    • Update authorities
    • Read authorities
      • For substantive content
      • To find additional authorities
    • Step back to reflect on findings and evaluate results.
research pathways
Research Pathways

Familiar area

Unfamiliar area

  • Appropriate secondary source available
  • Appropriate secondary source unavailable
research in a familiar area
Research in a familiar area
  • May be an area you are familiar with through pre-research
  • Make sure that you really are familiar
    • Factual similarity
    • Procedural/transactional similarity
  • Begin with known sources in appropriate hierarchy (const., statute & regs, cases)
  • Update
unfamiliar area start with a secondary source
Unfamiliar area?Start with a Secondary Source
  • law review articles
  • encyclopedias
  • treatises
  • nutshells
  • hornbooks
  • ALR annotations
about secondary sources
About Secondary Sources
  • Treatises ARE good!
  • Distinguish between:
    • Secondary sources useful as finding aids/background
    • Secondary sources you can cite.
start with secondary source if you find a statute
Start with secondary source – if you find a statute:
  • Note effective date
  • Read text of statute & cross- referenced statutes
  • Browse surrounding sections & case annotations
  • Look for references to regulations
  • Look at TOC for other relevant statutes
  • Update all sections to make sure you have the section in effect at relevant point in time
  • Use notes of decision to identify and list cases interpreting relevant statutory language
if you find a statute continued
If you find a statute - continued
  • Specifically, you’re looking for:
    • Definitional sections
    • Sections on construction
    • Cases interpreting the statutory language
    • References to regulations
    • Congressional findings & purpose
start with secondary source if no statute
Start with secondary source – if no statute
  • Look for cases
    • If there is a leading case, read it for further citations
    • Mine it for topics and key numbers
    • Double-check with a word search that omits topics/key numbers
    • Shepardize or KeyCite to expand research
    • Shepardize or KeyCite to validate (update).
if you start with primary materials look for a governing statute
If you start with primary materials - look for a governing statute
  • Use two independent methods
    • Index to relevant code (on-line or in print)
    • Natural language search
slide23
Try West Digests for your jurisdiction

Descriptive word index search for topic/key number

Natural language search

Reserve terms & connectors search

For more targeted searching once you have familiarity with the language used

For special field searching

Then follow same process as when you start with a secondary source

If you start with primary materials – and no governing statute

three @ hours on westlaw and nothing to show for it now what do i do
Three #@%! hours on Westlaw and nothing to show for it—now what do I do?
  • Ask if there are other sources you should look at.
  • Make sure you understand the question.
  • “10-minute rule”
before you go online
Before you go online
  • Get background about your topic and write out your search.
  • Search in the smallest database possible.
  • If you’re having trouble formulating a search:
    • ask a librarian
    • call Wexis – 1-800-
effective online research
Effective Online Research
  • Segment/field search for precision searching
  • Use Focus (Lexis) & Locate (Westlaw)
  • Email to yourself
  • Use the TOC
  • Book Browse (Lexis)
  • Next / Previous section (Westlaw)
more online tips
More Online Tips
  • Search the smallest appropriate database
  • Update with Shepard’s / KeyCite to find cases and/or pending legislation
which approach is best
Which approach is best?
  • Secondary sources give you a coherent picture of the law, but may not be comprehensive.
  • Keyword searches, digests, annotated codes are more exhaustive, but don’t evaluate the material.
  • Westlaw & Lexis headnote are more efficient for finding cases by issue than by fact pattern.
  • Keyword searches online are good for finding cases by fact pattern, but less efficient for finding cases on procedural issues, and not always accurate or complete.
research process is recursive1
Research process is recursive:
  • Get familiar with problem
  • “Pre-research”
    • governing law, substantive area
  • Initial search for preliminary understanding of legal context
  • Refine understanding of problem
  • More focused search for authorities, updating, etc.
slide30

Am I done yet? Did you?

  • Review your assignment and research plan?
  • Consider alternative theories or lines of research?
  • Look in all important places?
    • secondary sources
    • use 2 methods to find statutes & check an annotated code
    • use 2 case finding methods
  • Update primary materials?
  • “closure”
discussion question
DISCUSSION QUESTION

You’re scheduled to meet with your boss, Shari Partner, to talk about a new case she wants you to work on. Ms. Partner has told you that the case involves the circumstances under which a successor corporation can be held liable for products of its predecessor in a products liability case.

You’re clueless, but you want to make a good impression when you talk with her. Where would you look to get some background about this issue?

slide32
1. Under what circumstances can a successor corporation be held liable for products of its predecessor in a products liability case?

When you’re not an

expert, start with

secondary sources to get

an overview of the topic

and cites to cases/statutes:

  • encyclopedias (AmJur [Lexis & Westlaw], CJS [Westlaw])
  • ALR annotations [Westlaw & Lexis]
  • books/articles
  • Treatises and Nutshells
slide33

AmJur encyclopedia provides a “general rule”, a brief overview of the law, and citations to primary authorities.

slide35

ALR provides detailed analysis in selected topics and citations to relevant cases, statutes and regulations.

discussion question1
DISCUSSION QUESTION

You’ve been asked to write a

memo on the question of

whether corporal punishment

in public schools violates

students’ constitutional rights.

You remember reading a Supreme

Court case in law school called

Ingraham v. Wright that’s right on

point. How would you find the

Ingraham caseand other cases on

the same subject?

2 f ind the cite for ingraham v wright
2. Find the cite for INGRAHAM v. WRIGHT.

Westlaw: FIND or “field” search

Lexis: GET A DOCUMENT or “segment” search

Free/inexpensive websites

“Table of Cases” in print digest

2 how do you find more cases that address the same issue as ingraham v wright
2. How do you find more cases that address the same issue as INGRAHAM v. WRIGHT?

Use the features of Lexis & Westlaw!!!

  • Westlaw: Topic/key number search using headnotes from your case
  • Lexis: “More Like This” “Core Terms” Headnotes (“All” or “More Like This Headnote”)
  • Use terminology from a case to do key word searching
  • Look at cases cited in the case
  • Shepardize or KeyCite the case
2 how do you find still more cases that address the same issue as ingraham v wright
2. How do you find still more cases that address the same issue as INGRAHAM v. WRIGHT?

Use Lexis & Westlaw!!!

  • Use terminology from a case to do key word searching
  • Look at cases cited in the case
  • Shepardize or KeyCite the case
discussion question2
DISCUSSION QUESTION

Your boss has given you a brief he’s written and asks you to find a few cases that say that there has to be consideration for a contract to be valid.

Where would you look?

slide55
3. Where would you look for citations to cases that say there has to be consideration to make a binding contract?

To find cases that define terms:

Words & Phrases [Westlaw]

  • If you can’t find a case:
  • Restatement of Contracts [Lexis & Westlaw]
  • Law Dictionary (Black's) [Westlaw]
  • Major treatise (e.g., Corbin on Contracts) [Lexis & Westlaw both contain selected treatises]
slide58

WP stands for

“Words & Phrases”‘

discussion question3
DISCUSSION QUESTION

You’re a research assistant, and you receive an e-mail from your professor:

“I’m updating my consumer

protection law casebook. I need to know which states allow individuals to sue for damages for deceptive trade practices, in which this is a criminal offense, and where the state attorney general can bring a lawsuit.

Please provide the cites and

relevant texts.”

where do you look to find the statutes on deceptive trade practices in all 50 states
Where do you look to find the statutes on deceptive trade practices in all 50 states?

If your first reaction

to a research assignment

is: “OMG, I don’t know

where to begin!”

Your first step should

be to talk to a librarian

4 where do you look to find the statutes on deceptive trade practices in all 50 states
4.Where do you look to find the statutes on deceptive trade practices in all 50 states?

LEXIS OR WESTLAW

  • Westlaw: SURVEYS database [National Survey of State Laws]
  • Lexis:States Legal - U.S. > Combined States > Find Statutes & Legislative Materials > LexisNexis 50 State Surveys, Legislation & Regulations >> [topic]
  • Martindale-Hubbell Digest of State Laws[Lexis: MARHUB;MHDIG]
  • Other Secondary Source:
  • Subject Compilations of State Laws, law review articles, etc
discussion question4
DISCUSSION QUESTION

Since you started law school, your

friends and family have been asking

you for legal advice. This time it’s

your grandparents, who have recently

retired and moved to Asheville. They

just bought a new Prius that’s turned

out to be a real lemon. Where would

you look to see if North Carolina law

protects consumers whose new cars

don’t live up to their warranties?

(You’ve checked with your boss, and

been told that you may use any of the

firm’s resources).

5 how do you determine if north carolina law protects new car buyers
5. How do you determine if North Carolina law protects new car buyers?

Start with a

secondary source!

(e.g., a state legal

encyclopedia)

u s state materials north carolina forms treatises cles and other practice material
U.S. STATE MATERIALS> > NORTH CAROLINA > > Forms, Treatises, CLEs and Other Practice Material
annotated codes
ANNOTATED CODES
  • Annotated codes include research aids and summaries of cases decided under the statutes
  • Lexis
  • Westlaw
  • print
always update statutes
ALWAYS UPDATE STATUTES!
  • Search the public law and bill databases by key word or using the cite as a search query.
  • Use Shepard’s or KeyCite.
  • Check pocket parts (or pamphlets) & advance sheets for print code.
a little advice make friends with your court or firm librarian1
A little advice – make friends with your court or firm librarian.
  • Attend the library orientation.
  • Ask about in-house databases, newsletters and practitioner materials on your topic.
  • ASK QUESTIONS!!