Transcript Getting the Assignment - Library

Crash Course in Legal Research
May 20 & May 25, 2011
UC Hastings College of the Law Library
Librarians to Contact for Help
Susan Nevelow Mart ([email protected])
Hilary Hardcastle ([email protected])
Chuck Marcus ([email protected])
Vince Moyer ([email protected])
Linda Weir ([email protected])
Tony Pelczynski ([email protected])
Take a Tour
• Visit the real library
• Visit the virtual library
Getting the Assignment – Ask the
Reporter’s Questions
• WHO
• WHAT
• WHERE
• WHEN
• WHY
• HOW
Thanks to Paul D. Callister, UMKC Scholl of Law Library
WHO
• Are the parties?
• Which side:
• Of the lawsuit?
• Of the transaction?
• Any legal entities involved?
• Is the audience for my work?
• Else has worked on a similar case?
WHAT
•
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Are the facts/descriptive words?
Are the legal issues/descriptive words?
Are the sources?
Ask for obvious missing important facts or information
Should the work product look like?
Are the cost constraints?
WHERE
Jurisdiction
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Federal?
One circuit?
Other states?
State?
Choice of law?
WHY
• Objectives?
• Results Looking For?
WHEN
• Is it due?
• Are there other deadlines for review?
HOW
• Much time should I allocate to this?
Level 1 - Frame Your Issues
• Decide what you need to find and formulate the
question(s) you are researching.
• Figure out what secondary sources (including work
product) will best address your research needs (and
ASK if you are not sure).
• Read the secondary sources to get context.
• Check your plan again and see if your research to date
requires you to get clarification, if you have gotten off
track with your research, or if your research to date
opens new avenues you need to think about..
Tip:
Write It Down and Play It Back
Write down the assignment and “replay” to the
requestor. Check back in to confirm that you are on
track.
Make sure that “the ball hasn’t moved.”
READ
The cases and statutes referred to in your
secondary sources
Level 2 – Refine Your Search and Update
• Once you have context, background, and citations to good
primary law, come up with your secondary research plan.
• If you are looking for case law, you could refine your
search strategy and then use case databases, headnotes
and key numbers to find cases that are more factually
similar to your client’s case and to make sure all your
cases are still good law.
• If a statute applies in your case, you can use annotated
statutes to find good cases.
• There is no one strategy that will work with every
problem. But breaking your problem down into parts and
making sure you understand the context of the problem
will always help.
Tip:
Build Redundancies Into Your Research
LEXIS/WESTLAW
PRINT MATERIALS
OTHER ELECTRONIC DATABASES
Tip: Be A Skeptic
Maintain a certain skepticism about the facts each side
relates.
Understand that the facts are the subject of the dispute as well as
the law. What you are told are the “facts” need to be verified, and
possibly proven in court.
RECORD
• Your search results:
▫ You may have to justify the thoroughness of your
searching
▫ And someone may pick up the file after you and
will not want to reinvent the wheel
▫ http://gmail.com
▫ http://westlaw.com
http://lexis.com
Tip:
Start With a Treatise or Practice Guide
Treatises and practice guides come first! Get context.
After you have context, use the leading primary sources found to
locate case law that more closely tracks the facts of the client’s case.
Treatises & Practice Guides
• Primary vs. Secondary Authority
• Types of Treatises
▫ Comprehensive
▫ Single Volume
▫ Practitioner Guides
Treatises and Practice Guides
• Features
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Table of Contents
Index
Cases/Statutes/Regs Tables
Practice Pointers
Forms
Checklists
Supplements
Treatises & Practice Guides
• Ways to Find Them
▫ Law Firm or Hastings Catalog
▫ Ask Your Firm Librarian or Ask Us
▫ Check Westlaw/Lexis secondary sources or
topical libraries
▫ For California law, check CEB OnLAW
Treatises & Practice Guides
• Common Nicknames You May Encounter
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Red Book
Weil & Brown
Rutter
CEB
Citators
• What is a Citator?
▫ A citator is a tool that helps you determine what
has happened to your case, statute, or regulation
since it was released or published.
• The two major online citators are:
▫ Shepard's (available on LexisNexis)
▫ Keycite (available on Westlaw).
Citators
• Why use a citator?
▫ To find prior and subsequent history of a case (statutes
include amendment or pending legislation)
▫ To find negative treatment (your case has been
overruled or your statute has been amended)
▫ To find positive treatment (another case agrees with
the analysis in yours)
▫ To find primary and secondary sources on a particular
narrow topic
▫ To find a parallel citation for a case
Citators
Example: Raich v. Ashcroft, 352 F.3d 1222 (Lexis)
Westlaw
Tips for Using Citators
• Limit the number of cases you need to review
by using headnotes
• Always read citing cases
• Use both citators – there is only 33% overlap in
results!
Tip:
Where Is It Being Litigated?
Understand mandatory and persuasive authority:
know your jurisdiction.
Mandatory v. Persuasive
• U.S. Supreme Court
▫ Mandatory on all courts on points of federal
law
• Federal Courts of Appeals
▫ Mandatory on district courts and specialized
lower courts in the same circuit, persuasive
for courts in other federal circuits and state
courts
Mandatory v. Persuasive
• U.S. District Court
▫ Mandatory on specialized lower courts in the
same district
• State Courts
▫ Decisions of each state’s Supreme Court on that
state’s law is mandatory on all lower courts;
state appellate court decisions are mandatory on
all lower courts
Published and Unpublished
• Citable at All
• Weight
• Check Local Rules
• California Has Its Own Special Rules
http://libguides.law.ucla.edu/depublication
Origins Of Statutes, Regulations and Cases
http://www.library.arizona.edu/about/libraries/govdocs/research/govstructr.html
Statutes
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Federal vs. State
Session Laws vs. Code
Statutes vs. Regulations
Official vs. Annotated
Paper vs. Online
Tip:
When Did the Event Occur?
Be aware of the timing of the events you are
researching.
If the events took place in 2001, the law as it existed
in 2001 is what you must find. That might not be the
current law.
Statutes
• Access Points
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Index (print and online)
Popular Name Tables (print and online)
Tables of Contents (print and online)
Find by Citation (print and online)
Full text T&C search (online)
Statutes – Legislative History
• Federal
▫ Thomas (thomas.loc.gov)
▫ Hastings Research Guide
▫ http://library.uchastings.edu/library/federalresearch/fedleghist.html
• California
▫ LegInfo (leginfo.ca.gov)
▫ Hastings Research Guide
▫ http://library.uchastings.edu/library/californiaresearch/calleghist.html
Regulations
• Relationship to Statutes
▫ Implement laws
▫ Authority
 Federal Statute or Executive Order
 California - Constitutional Provision or Statute
Regulations - Publication
• Federal
▫ Federal Register
▫ Code of Federal Regulations
▫ Govpulse.us
• California
▫ California Regulatory Notice Register
▫ Barclay’s Official California Code of Regulations /
California Administrative Code
Regulations
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•
•
•
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FDsys (http://www.fdsys.gov)
Regulations.gov (http://www.regulations.gov)
CA regulations (http://www.calregs.com)
Agency websites
Lexis and Westlaw FR and CFR databases
Digests
• West’s Key Number System
▫ In Print
 West’s California Digest
• On Westlaw
▫ Key Numbers
▫ Headnotes
• West’s Analysis of American Law
Ways to Use Digests
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Descriptive Word Index (print only)
Browse the outline (print or online)
Start with one good case, use headnotes
Search for key numbers
Use KeySearch to formulate a query
Power
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Results for Flowers
Advanced Search
Limit by domain or site
Combine boolean operators
Google Cache
Cached page is a snapshot of the page when it was
indexed.
Alerts
Email updates of your searches
Search History
Free Web Sites
• Learn to know when a website is authoritative
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Updated?
Author contact?
From a respected source?
Even the government can let you down
Online Guides
California Law on the Internet
http://library.uchastings.edu/library/californiaresearch/california-law.html
Federal Law on the Internet
http://library.uchastings.edu/library/federalresearch/fed-law.html
PACER: http://pacer.psc.uscourts.gov/
Dockets
Free Court Case Docket Monitoring:
http://www.legaldockets.com/FreeCourtCaseDocketMonitoring.html
Public Access to Court Records:
http://www.ncsconline.org/wc/CourTopics/StateLinks.asp?id=62
Justia Dockets
http://dockets.justia.com
Impress Your Partner
• CourtListener at
http://courtlistener.com/
This is a beta site that provides
real time alerts to decisions issued
by the US Circuit Courts of Appeal
and the US Supreme Court.
Searching Techniques
Learn How to Construct a Good Search Before You
Go Online
must a drug manufacturer warn consumers of risks or side effects?
(Terms)
must a drug manufacturer warn consumers of risks or side effects?
drug
manufacturer
warn
consumer
risk
“side effect”
(Alternatives)
must a drug manufacturer warn consumers of risks or side effects?
drug
pharmaceutical
manufacturer
warn
disclose
consumer
risk
“side effect”
(Connectors)
must a drug manufacturer warn consumers of risks or side effects?
manufact!
manufacturer
drug
pharmaceutical
warn!
warn
disclos!
disclose
consumer
risk
“side effect”
(drug or pharmaceutical) w/p manufact! w/p (warn! or disclos!) w/p
consumer w/p (risk or “side effect”)
Call the Reference Attorneys at Lexis
and Westlaw
Westlaw: 1-800-REF-ATTY
Lexis: 1-800-455-3947
ASK
For help:
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help