Chapter Five Legal Research and Analysis

1. Chapter FiveLegal Research and Analysis • In this chapter, you will learn about: • The authorities used in legal research • Techniques used to analyze those authorities

2. Primary Authorities • Primary authorities are official pronouncements of the law by any of the three branches of federal or state government.

3. Secondary Authorities • Secondary authorities are any legal authority that is not a primary authority.

4. Primary Sources of Law • Most persuasive & legally binding • Federal primary sources: • Code of Federal Regulations (C.F.R.) • Supreme Court opinions • United States Code (U.S.C.) • Regulations & administrative rules • Annotated version: Law & case opinion w/ commentary • A loose-leaf, binder, or pamphlet service: • Service that publishes recently decided court decisions • The Federal Register: • Pamphlet service, records daily activity of the Congress

5. Case Reporters • Reports case law in specific jurisdictions • Case reporters publish opinions of the appellate courts that serve to interpret the law: • They contain opinions from every case heard and published within the relevant jurisdiction. • Reporters are organized by states and reasons.

6. Legal Research AuthoritiesPrimary Authorities (binding)

7. Legal Research AuthoritiesSecondary Authorities (persuasive)

8. Secondary Sources • Legal encyclopedias • Textbooks • Restatements of law • Publications from professional legal organizations

9. Legal Encyclopedias • Am. Jur. and Am. Jur. 2d: (American Jurisprudence) • Cor. Jur. 2d: (Corpus JurisSecundum) • Legal encyclopedia organized by topics and subheadings presenting law and scholarly discussion from multiple jurisdictions.

10. Legal Digests • A digest: • A collection of all the headnotes from an associated series of volumes, arranged alphabetically by topic and by key number or summary of testimony with indexed references of a deposition. • A digest presents definitions from various encyclopedias, legal dictionaries, state statutes, constitutional sources & case law. • Federal and state sources.

11. Elements of a Case • Headnotes • Names of counsel • Opinion • Decision • Case name • Docket number and deciding court • Date of decision • Case summary or synopsis

12. Use Conventional Print Source When: • You need to “get your feet wet” and get some background about an area of the law. • You need a thorough and comprehensive analysis of an area of the law, such as that provided by a treatise. • You are having difficulty formulating research queries for Lexis or Westlaw because you are unfamiliar with the issue you are researching. • It would be more cost-effective and easier to use traditional print sources to get a quick answer to a question than to incur costs by using Lexis or Westlaw.

13. Use Computer-Assisted Legal Research When: • You already have a citation to known case or other authority • You are looking for cases involving a known party, attorney, or judge • The area of law is new or evolving • You are looking for the most current information available • You are validating your primary authorities (by Shepardizing or KeyCiting)

14. Internet Research Strategies • Take notes • Use bookmarks • Avoid reading the screen • Never rely completely on the Internet • Be aware of gaps in information • Review materials • Be cautious

15. IRAC Method of Analyzing Authorities • I: Issue • R: Rule • A: Analysis or Application • C: Conclusion

16. IRAC • “I” is for issue • Present the issue as a question or present a brief statement that provides a glimpse of what the analysis you are about to do will uncover. • “R” is for rule • Present the relevant rule(s) of law found in the research. • Some analysis of law, but do not apply rule to the facts or reach a conclusion. • “A” is for application • Apply rule of law to case facts & discuss relevant law & counterarguments. • “C” is for conclusion • Each legal rule or issue raised in the analysis needs a conclusion. Conclusions should be more rule of law than fact based & contain concise statements the reader can identify & understand.

17. Common Elements Included in a Case Brief • Citation • Procedural history • Statement of facts • Issue(s) • Answer(s) • Reasoning • Holding

18. The Case Facts • Case facts should be review several times to ensure anything of legal significance is researched. • Distinguishing facts: • Facts that establish the different analysis and application of settled law. • New law: • A novel interpretation of established law.

19. The Case Brief • Analyzes the case opinion & legal issues related to the research question asked. • Based on the case opinion & the holdings located in your research. • Legally significant facts should always be included.

20. Checklist for Legal Brief Writing • Case facts • Concise statement of facts, includes only legally relevant facts. • Case issue • Statement of legal question posed & legal theories in case & research. • Case decision • Case holding first, then brief presentation of concurring & dissenting opinions. • Court reasoning • Analysis used by the court to set the rule of law in cases cited as precedent. • Rule of law • Concise summary of case holding/rule of law (precedent) the case established. • Dissent • Other rules of law cited & analyzed in the dissenting opinions.

21. The Legal Memorandum • 1st section: identifies the addressee & contains a brief statement of the point of law the research addressed; • Avoid including any argument in this section. • Questions presented section: sets forth the most important facts & applicable law. (Question is meaningless unless the facts of the particular case are included.) • Discussion section: contains a complete answer to the question posed, including the research presented comprehensively enough to support the legal analysis & the position held; • The discussion section always has a conclusion.

22. Checklist for Legal Memorandum Conclusion • Include a brief summary of each legal argument made. • Include specific reference to both statutory and case law used in the discussion section for each legal point. • Do not introduce new matters in the final paragraph. Recap what has been presented & discussed in the body.

23. The Opinion Letter • Opinion letter: • letter that renders legal advice; • contains legal analysis; • presents results of legal research and the position recommended by the attorney based on the facts & the law • The opinion letter recommends but does not demand a specific course of action.

24. Thinking About Law • Differentiate between emotionally driven analysis & rational fact-based analysis. • Emotion and rationality are not mutually exclusive; they are interrelated. • Use the legal analysis which will help you develop the most persuasive legal position and analytical skills.

25. Legal Writing Rules and Tips • Memorandum of law: analysis & application of existing law setting forth the basis for filing the motion: • Clearly state the issue & your position in relation to the issue; • No assumptions; • Tell the reader what you know about the issue.

26. Principles of Good Legal Writing • Think through what you intend to say • Organize your thinking • Determine precisely what question you need to answer • Use short, direct simple sentences • Use words with which you are familiar • Use critique rather than criticism • Do not assume!

27. General Writing Tips • Write professionally. • Have an introduction, body, and conclusion. • Understand your research. • Keep to the your chosen structure. • Do not use expressions such as “in my opinion…”

28. Writing Persuasively • In one sentence, state the conclusion you want the court to reach. • View issues from the reader’s position. • Presenting info in an organized, logical manner. • Begin with your strongest point. • Set the TONE

29. Writing About Law • Argument: • Issues are analyzed through citation of legal authorities. • Well-reasoned presentation of your position. • Introduction tells the reader what will be done. • Conclusion states what the writer wants from the court. • A position is: Analysis supported by fact. • An opinion is: Analysis supported by emotion.

30. Critical Analysis • Critical analysis: • Understanding the elements of the client issue, • reading & reporting the law accurately, • identifying why the existing law applies, and • distinguishing case facts from existing law.

31. Process of Legal Analysis Step 1. Note your initial reaction to the question posed Step 2. Identify relevant facts Step 3. Identify relevant legal theories Step 4. Assess the impact of jurisdictional issues, if any Step 5. Consider and analyze opposing arguments Step 6. Formulate a reasonable legal conclusion

32. Fundamentals of Legal Research • Research is the process of locating law. • Analysis: • Find the law • Interpret the application to facts to formulate persuasive argument to support your position. • A research memorandum: • Reviews case facts • Presents research question • Summarizes research findings • Answers research question with legal analysis of applicable law.

33. Fundamental Tools of Legal Research • Stare decisis: Decisions from a court with substantially the same set of facts should be followed by that court & all lower courts under it • Precedent: Holding of past court decisions that are followed in future judicial cases where similar facts and legal issues are present. • Landmark case: Decision of the Supreme Court that significantly changes existing law

34. Steps of the Research Process • Gather all relevant information • Prepare for research • Identify the legal issue or question • Identify key words • Explore secondary sources • Locate the primary authority • Review and update source information • Draft your research memorandum

35. Legal Citations • A citation is information about a legal source directing you to the volume & page in which the legal source appears. • Properly attributing the legal issue, opinion, or conclusion is mandatory in all legal research & writing. • Consistency& Accuracy are essential • The Bluebook:A Uniform System of Citation, 18th ed. • Widely used legal citation resource, published by the Harvard Law Review Association, that is regularly revised and updated.

36. Sample Case Citation,U.S. Supreme Court (Federal) Appellee Source Page Appellant Meritor Savings Bank v. Vinson, 477 U.S. 57, 60 (1986). versus Volume Case Year Exact reference

37. A Cited Case • Appellant: • Party filing the appeal; (bringing case to appeals court) • Appellee: • Winner in lower court, responds to appellant’s argument. • Case holding: • The statement of law the case opinion supports. • Advisory opinion: • Statement of potential interpretation of law in a future opinion made without real case facts at issue. • Concurrence: • Another view, written by member of same reviewing panel. • Concurring opinion: • Opinion that agrees with majority argument & supports the majority for different legal reasons

38. Reading Case Opinions • Holding: • Aspect of a court opinion which directly affects outcome of the case; it is composed of the reasoning necessary to reach the disposition • Majority opinion: • An opinion where more than half of the justices agree with decision: • This opinion is precedent. • Dissenting opinion: • An opinion in which a judge disagrees with result reached by the majority; an opinion outlining reasons for the dissent, which often critiques majority & any concurring opinions • Dicta: • Discussion included in the opinion with no authoritative or persuasive value • they are without legal weight but, nonetheless, valuable. • Distinguishing: • Explaining why the factual differences call for a decision differing from established law

39. Types of Law to Research and Cite • Mandatory authority is required & binding or guiding in the case to which applied. • The primary sources are mandatory. • Persuasive authority is influential & important but not required as binding. • Law not directly applicable is persuasive. • Secondary authorities should NOT be cited

40. Computer-Assisted Legal Research • CALR uses electronically reproduced materials. • Electronic sources-derived from but don’t replace traditional research books or text materials. • Lexis/Nexis: • Commercial electronic law database service contains the full text of federal and state cases, statutes, and administrative regulations. • There also are extensive secondary law source materials such as law journals and specialty publications such as tax law or agency materials. • Westlaw: • Commercial electronic law database service contains similar data to Lexis as well as appellate decisions in full-text format. • Westlaw uses the key numbering system for both electronic and traditional consistency.