2L SUMMER SUCCESS SERIES PART II
Legal Research Refresher: What to Know Before You Go
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Schedule for this Hour Deanne Morgan Tackling your first legal research assignment Kate Dickson Free and low-cost legal research options Laura Scott Resources for help with business and transactional research
When You Receive Your Research Assignment 1. Take notes 2. Ask questions about anything you do not understand 3. Clarify the assignment (“I want to be sure I understand. You’re asking me to …”) 4. Find out who to go to if you have questions while researching 5. What is the deadline? Put the deadline (day and time) into your calendar system
Questions To Ask About The Research Project: 1. What resources do I have access to? 2. May I use Lexis / Westlaw / Bloomberg Law? 3. What format would you like the final product to be in? 4. Is there a memo/brief/form file? 5. Do you have a recommended starting point? 6. About how much time should I spend on the research? 7. What is the client file number? How do I track my time?
Step 1: Plan Your Research BEFORE You Begin 1. What is it you’re looking for? What is the issue or question? WRITE IT DOWN 2. Subject area (topic) 3. Jurisdiction 4. Secondary authorities 5. Primary authorities 6. Outline
Step 2: Plan Your Time Time is money. Planning your research project includes time management. You need time to: 1. Plan how to research the issue 2. Research secondary authorities 3. Research primary authorities 4. Read what you find, analyze it and decide whether it’s: authoritative (if you used Google),accurate / current, and helpful. If helpful, how will it fit into what you’ll turn in to the attorney? 5. Update primary authorities (Shepard’s, KeyCite) 6. Draft what you need to turn in 7. Do additional research (if necessary) 8. Finalize your work product (including careful proofreading)
Step 3: Getting Started 1. Start broad, go narrow 2. Start with secondary sources (a) Use library catalog to find them (b) Use print sources before online 3. Using info from secondary sources, move to primary sources (a) Use library catalog to find them (b) Use print sources before online 4. If searching fee‐based online service, write down potential searches before you go to the computer (a) Synonyms (b) Terms and connectors
Step 4: Ask For Help • Librarians • At your workplace • County law library * • Local academic law library * • Clerk of the Court • Person who gave you the assignment *Remember to keep client matters confidential.
WARNING: Do NOT Spin Your Wheels Time is money, no matter which resources you use (free or fee‐based) Do NOT wait until the last minute to tell the attorney you’re stuck. Ask for help. Important: Be prepared with a list of resources you’ve checked (names, topics, key numbers, online search queries) and what you’ve found so far before you ask for help.
Lexis and Westlaw (or Why Law Firms Are So Unhappy With New Associates) Lexis and Westlaw are EXTREMELY expensive resources. New associates tend to use them for all research, even though other sources are readily available and less expensive. TIPS: 1. Do not use Lexis / Westlaw for ALL of you research. 2. Use print or low‐cost, no‐cost resources first. 3. Plan your online search and write it down before you start (jurisdiction, topic, search terms, terms and connectors options)
More on Lexis and Westlaw (or Why Law Firms Are So Unhappy With New Associates) Lexis / Westlaw/ Bloomberg Law each has a multitude of pricing plans. Even if you know the pricing plans, it’s difficult to be efficient using these online sources as your only sources. “Between them, Lexis and Westlaw have over 100,000 separately priced data files. Each of these 100,000 files has at least 5 different price points associated with it, including: hourly, transactional, cite checking, find and print, document printing, line printing and image printing. Some files have special charges if they generate reports or have an expandable table of contents. Then overlay this toxic brew with the pricing variations generated by “flat rate” contracts which trigger a special discount for some but not all content.” http://deweybstrategic.blogspot.com/2011/05/myth‐and‐madness‐of‐cost‐ effective.html Dewey B Strategic Thursday May 5, 2011 Accessed 3/12/2012
How Terms & Connectors Will Save Money (and Impress your Employer) Using terms and connectors (also known as Boolean logic): Makes your search more precise Helps eliminate unwanted results Saves time Therefore saves money NOTE: Field searches also make your searches more precise. Field searches are the boxes that you fill in with specific information, such as party name(s), attorney name(s), judge, docket number, date, court, etc.
Quick Review of Terms & Connectors AND narrows your search OR broadens your search NOT should be used to exclude unrelated results (example: cardinals BUT NOT baseball) QUOTATION MARKS are used to search for a phrase (example: “breach of warranty”) TRUNCATION is used to find variations of a word (example: encroach* will find encroach, encroached, encroaching, encroachment) IMPORTANT: Different databases use variations of these. Check “Help” or “Search Tips” for information about the database you’re using.
Order of Processing The order is, from first to last OR, w/#, w/s, w/p, AND. Example This means that if you want cases dealing either with frisking or with search and seizure, this search will get the wrong results: frisk! or search! w/3 seiz!. (It will get cases that have “frisk!” within 3 words of “seiz!” and it will also get cases that have “search!” within 3 words of “seiz!”). If the intent is to get cases that have the word “frisk!” and also to get cases that have “search!” within 3 words of “seiz!”, using parentheses will override the default order of processing the connectors and give the right result. Thus the search should read: frisk! or (search! w/3 seiz!).
Good News About Your Student Accounts! Bloomberg Law: You may use your Bloomberg Law student account over the summer. Lexis Advance: You may use your Lexis Advance student account over the summer. WestlawNext: You may use your WestlawNext student account over the summer ONLY for non‐profit and academic research purposes. You may NOT use it for commercial or government work. You will have to sign up on WestlawNext to use the account over the summer. Check with your employer before you use your student account. Your employer may want you to use their account so that the client can be billed for your work.
Low‐Cost and Free Legal Research Sources Your employer may require you to use a low‐cost resource before you go to Westlaw, Lexis or Bloomberg. EXAMPLE: In 1992, the firm of Locke Lord began requiring the use of Loislaw before Westlaw or Lexis. Handout has information on these resources.
What’s “Hot” Right Now? Intellectual property: patents Health care: Affordable Care Act, Medicaid, Medicare Environment/Energy: fracking, coal ash Crime: cyber crime, white collar crime related to social media Immigration You might be asked to research issues in one or more of these areas.
Duke Students’ Summer Research Questions •
Can I “Shepardize” a case from Japan?
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Who are consumer product manufacturers required to notify when they find a product they produce causes cancer?
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Is it error for a judge to adopt verbatim all of the factual findings presented by one side in a case?
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What are the rules surrounding the allocation of transplant organs?
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Can a guardian ad litem in Florida advocate for a child before a school board?
Free and Low‐Cost Legal Research
Public Library of Law www.plol.org
All Supreme Court opinions Circuit Court opinions 1950‐present U.S. Code and CFR Supreme & Appellate Court cases, all 50 states, 1997‐present Statutes, Constitutions, and Court Rules from all 50 states Regulations and Administrative Codes from Selected States Searchable by citation, keyword, jurisdiction, date
Google Scholar
www.scholar.google.com
Also includes scholarly articles and abstracts, searched and ranked according to Google’s algorithm
U.S. Supreme Court opinions since 1791 Federal District, Circuit, Tax, Bankruptcy opinions since 1923 Published U.S. state appellate and supreme court opinions since 1950 Uses its algorithm to find, rank cases
Legal Information Institute at Cornell Law School www.law.cornell.edu Supreme Court decisions 1990‐present; selected historic decisions Facilitates searching of U.S. Courts of Appeals’ decisions in one place U.S. Code with links to House, LOC updates; U.C.C. materials; CFR Internet‐accessible state materials by jurisdiction (constitutions, statutes, opinions, regulations) Legal forms Wex Legal Dictionary & Encyclopedia
Justia www.justia.com
Provides links to primary law at the state and local level. Has all Supreme Court opinions, all Federal Circuit Court cases 1950‐present, and most Federal District court cases since 2004, browsable by year, reporter, searchable by citation, party name, keyword.
Findlaw
www.findlaw.com/casecode
Free database of case law and codes at federal and state level with keyword search capability. Forms are available for purchase.
Searchable opinion summaries of U.S. Supreme Court, federal Circuit Court, and some state supreme and appellate courts since 2000.
Government Websites – congress.gov & regulations.gov
www.congress.gov Search bills, enacted laws, Congressional Record, Congressional Members, and some hearings and other information related to the actions of Congress.
www.regulations.gov Final regulations (Federal Register, not CFR version), notices, guidance documents, and agency adjudications. Also allows you to search and submit comments on proposed regulations.
Government Websites – FDSys and e‐CFR
http://www.gpo.gov/fdsys/
www.gpo.gov/fdsys Official federal documents (generally mid‐90s‐present), searchable and browsable, including: CFR , Federal Register U.S. Code, Statutes at Large Congressional Record, Bills, Committee Reports Public and Private Laws Budget of the United States Government Presidential Documents and Public Papers
www.ecfr.gov Unofficial (but currently updated) electronic version of the Code of Federal Regulations. Browsable and searchable by keyword, CFR citation, and relevant section of the U.S. Code.
Agency Websites
www.usa.gov/directory/federa l/ttp://www.usa.gov/directory/
www.epa.gov
For example, the EPA’s website has laws Federal agency websites are a great place to go for background information, citations and regulations, explanations of key to statutes and regulations, and legislative issues, and other guidance. history. USA.gov provides a hyperlinked index of federal agency websites.
State Government Websites
http://thomas.loc.gov/home /state‐legislatures.html
http://www.ncsl.org/
Library of Congress website provides a map with links to individual state legislature and general assembly websites. Coverage varies, but usually provides current statutes/codes for each state.
The NCSL is a great place to look for laws and regulations on a topic and see how they’ve been implemented state by state. It includes a 50‐state searchable bill database, indexed by topic.
Individual Court Websites
http://www.uscourts.gov/Court _Locator/CourtWebsites.aspx Administrative Office of the U.S. Courts provides a listing of court websites. Coverage varies, e.g. • • •
4th Circuit has opinions 1996‐date, searchable by keyword, case number, date 2nd Circuit has opinions 2002‐date searchable by keyword, docket number, party name, date 9th Circuit has opinions 2005‐date searchable by title, origin, judge, date, type of case
http://www.ncsc.org/Informatio n‐and‐Resources/Browse‐by‐ State/State‐Court‐Websites.aspx
The National Center for State Courts provides an alphabetical listing of state court websites, which often provide a great deal of information for free. Coverage varies a great deal.
Low Cost Legal Research Databases www.targetmap.com/viewer.aspx?reportId=29133 Low‐cost legal research databases are often offered free to state bar association members. These include Fastcase, Casemaker, and Incite. Map shows which states offer which resources.
Hawaii
Caveats for using low‐cost databases: They tend to rely on keyword searching and browsing (rather than headnotes and digesting). Most have basic citators, but they only list other cases where your citation appears, not descriptive information like whether the treatment was negative or positive.
Map created by Jennifer Behrens
FastCase – Offered by NC and NY Bar Associations www.fastcase.com Interface is similar to CaseMaker, InCite
Offered free to members of the NC and NY Bar Associations, among others. Includes case law, statutes & regulations, constitutions, court rules, and a limited secondary sources (e.g. NCBA subscription offers NC, GA law reviews free through HeinOnline). Other secondary sources are available for a relatively small fee. Law students can sign up for a free membership. Authority Check is Fastcase’s citation analysis feature. Searches only for later citing cases (not precedent). Can use it to sort search results too. “We do not hold Authority Check out as a complete replacement for services such as Shepard’s or KeyCite – both of which we like very much.” They recommend searching for a few words in the heading of your case to find related precedent.
Free Secondary Sources – Research Guides
https://law.duke.edu/lib/research_guide
Duke Law Library’s Research Guides are a great place to start. This Legal Research on the Web guide offers links to low‐ cost legal research options.
Free Secondary Sources – Research Guides
http://law.lexisnexis.com/infopro/zimmermans
http://www.loc.gov/law/help/guide.php
Zimmerman’s Research Guide: Comprehensive research guide indexed by topic. Provides links to subscription and non‐subscription research tools.
Law Library of Congress Guide to Law Online has a great deal of information on legal sources online. The legal research guides cover a range of topics.
Free Secondary Sources – American Bar Association
www.abajournal.com/magazine Archived editions free online back to 2004. While not authoritative, it’s helpful for getting started on a topic and looking for background and analysis on current legal developments.
http://www.americanbar.org/groups/dep artments_offices/legal_technology_resou rces/resources/free_journal_search.html Searches the text of over 400 free online law reviews, journals, and document repositories. Also provides a list of links to free law reviews online that must be searched individually (scroll down page).
Free Secondary Sources – Social Science Research Network
http://papers.ssrn.com/sol3/ DisplayJournalBrowse.cfm Legal Scholarship Network contains thousands of abstracts, articles, and working papers. Content is searchable by keyword, browsable by top downloaded and most recent. Author contact information is also provided for correpsondence.
Free Secondary Sources – Heiros Gamos Law Center
www.hg.org
Has information on over 70 core areas of law and 260 sub‐areas of practice. Covers U.S. federal and state laws, as well as European and international law. Good place to start for background on an unfamiliar area of the law.
Other Useful Free Websites Oyez (www.oyez.org) All Supreme Court oral arguments 1981 to present Founder ’s Constitution (http://press‐pubs.uchicago.edu/founders/) Constitution and related early original source documents American Memory at the Library of Congress (www.memory.loc.gov) Digitized American historical materials, including early House and Senate bills, committee reports, debates, and other manuscripts, prints, photos, posters, maps, recordings, movies, books, pamphlets, and sheet music. Thomas at the Library of Congress (www.thomas.loc.gov) Bills, resolutions, committee reports, debates, bill summaries, public laws, Congressional Record, treaties. Generally late 80s/early 90s‐present, browsable by keyword, date, member of congress. Dragnet (http://www.nyls.edu/library/library_services/dragnet1/dragnet/) Specialized Google search from New York Law School, runs only in a select group of websites chosen for their reliability and utility to legal researchers. Provides a list of the publications/sites it searches.
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Lexis Practice Advisor: a transactional approach to Lexis for selected practice areas
Wexis, but not only Wexis
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Great secondary sources from lots of other publishers • e.g., Aspen, BNA, PLI, Wiley Press Subscription‐based online sources beyond Wexis. • e.g., Thomson Reuters Checkpoint (tax) • Lots of free and fee‐based databases for searching SEC filings
Tools for staying current
And for research & drafting help
Example of a practitioner‐oriented treatise
Forms/precedents: Sample versions of standard legal documents and instruments Checklists: Tools to help you make sure you’ve included all relevant facts, elements of claims, contract terms, etc. Potential benefits
Save time Prevent mistakes Learn about legal issues to be researched
Why forms & checklists?
Forms: full documents, clauses, defined terms Caution: make sure your form or checklist Is current Complies with applicable law Is procedurally and factually appropriate Modify the form to conform to your facts, law of your jurisdiction
Using forms and checklists
Varieties of forms
In‐house forms Commercial form books (and online equivalents) General Subject‐specific Jurisdiction‐specific Government forms Exhibits to SEC filings
In print On Lexis/Westlaw Other lawyers in your firm/organization Personal recommendations Document management system Knowledge Management: bank of best work product In other commercial services e.g., Practical Law Company (now available on WLN)
Finding forms
Forms (not specific to any jurisdiction) with helpful annotations; may also include checklists. Often separated into transactional & procedural sets Examples of transactional form sets (Westlaw) American Jurisprudence, Legal Forms, 2d Nichols Cyclopedia of Legal Forms, Annotated Nichols Cyclopedia of Legal Forms: Business Organizations Nichols Cyclopedia of Legal Forms: Commercial Transactions West’s Legal Forms West’s Legal Forms: Business Organizations, Commercial Transactions Use as general overview, basic starting point
General forms sources
Examples of business‐related, standalone form books Fletcher Corporation Forms, Annotated (Westlaw) Securities Regulation Forms (Westlaw) Rabkin & Johnson’s Current Legal Forms with Tax Analysis (Lexis) Collier Forms Manual, 4th ed. Rev. (Bankruptcy) (Lexis) Forms in or accompanying treatises and practitioner‐oriented materials. Check appendices Examples:
Williston: A Treatise on the Law of Contracts (Westlaw) West’s Securities Law Series (Westlaw)
D&O Liability Handbook
Subject‐specific sources
Federal:
Bender’s Federal Practice Forms (Lexis), arranged by court rule Federal Procedural Forms, Lawyers’ Edition (Westlaw), arranged by court rule West’s Federal Forms (Westlaw), arranged by court
State examples:
Massachusetts Practice Series (state legal encyclopedia) (Westlaw) North Carolina Corporation Law and Practice Forms, 4th (Westlaw)
Jurisdiction‐specific sources
Try court or agency’s website Helpful links to court forms at LLRX.com
Government forms
Includes documents that were filed as exhibits to SEC filings
Includes helpful drafting notes
Upcoming Westlaw, Lexis, & Bloomberg Training at Duke Law
For more tips on legal research over the summer, check out these trainings.
We Want To Know! Tell us about your summer experiences, either during the summer or when you return in the fall. Your feedback helps us plan and teach research and writing classes. What were your biggest research challenges? Which research projects were easy, and why? What kinds of feedback did you receive from your employer about your research and writing? What do you wish you’d known more about before you started your summer job?