Tips

Research Tips

Scribes Board Member Ann Taylor Schwing spends countless hours and energy writing the Scribes Tips. Thank you, Ann!

March 30, 2018

Research Tip No. 128: How to Get There from Here

Although law schools almost uniformly have classes in legal research, my experience from working with graduates is that they learned only slices and not the whole thing. It is enormously frustrating to graduate, pass the bar, and then discover that there are yawning gaps of important knowledge. Employers often stay silent, perhaps hoping things are better than they seem, perhaps hoping not to reveal their own lack of knowledge.

What can the new attorney do on realizing the gaps that exist? There are multiple steps:

  • Sign up for all sorts of legal journals. The first year is often free or a nominal charge, so get them and read them.

  • Eat lunch with a couple other similarly situated associates, from the same firm if possible to avoid confidentiality concerns. Talk shop. What are they researching, how, why did they look there, what ideas and techniques are working or failing for them.

  • Talk to your mentor or the attorney assigning your work. Explain what you have done and ask what else they would do.

  • Learn how to use the relevant state or federal digest. The digest topic Equity can often lead to cases on point when other efforts have failed. Study the list of digest topics so you'll know when there is a topic on point.

  • Take seminars and webinars that seem likely to help. Some of the time will be wasted, but come away with one technique from each class, and it will make a difference. Your firm may pay for them too, or they may be free at the local law library.

March 16, 2018

Research Tip No. 127: What Case Law to Research?

We all understand that the best cases to rely on are U.S. Supreme Court cases and cases decided by the courts of the specific federal or state jurisdiction in which the lawsuit is pending, highest to lowest court. When there is no answer in the decisions of these courts, where should we look next?

 

Start with the federal district and circuit cases from the same circuit, especially circuit cases arising under the law of the same state. A state court is likely to be more comfortable with the local federal courts' decisions of state law than with a decision from a distant state under some other law.

 

Identify any "sister states" whose decisions are often considered. States with low population have relatively little litigation and few precedents. These states may routinely look to the law of nearby states or states that have historical parallels (early enactment of the Field Code). The better you understand which states are relief on in this manner, the better you can focus your research.

March 02, 2018

Research Tip No. 126: Official Opinions

Attorney general opinions are readily available with any of a dozen Internet searches. Every state and the U.S. Attorney General can and will issue opinions, although the identity of those who may ask for opinions varies substantially. Opinions may also be available from other government bodies:

 

Months typically pass between the request and issuance of the opinion; depending on the situation, a draft opinion may require multiple layers of approval. The government body may decline to provide any opinion for undisclosed reasons, and the opinion may not be all one hoped for. Nevertheless, in some situations, a targeted request for opinion may be very beneficial compared to the alternatives.

February 16, 2018

Research Tip No. 125: Who, What, Where, Etc.

Before putting your head deep into the most challenging issue in a just-filed motion, there are some process questions worth asking:

  • Who filed the motion and is this a kind of motion such a party can file? Against whom is the motion filed? Is this party subject to such a motion? Co-defendants often cannot act like plaintiffs and defendants against each other absent a cross-complaint or similar pleading.

  • Is the timing acceptable? Some statutory motions can only be filed before the answer, only before a summary-judgment motion is filed, or subject to other timing requirements. On occasion, a higher burden of proof applies to a later-filed motion.

  • Are there procedural flaws in the motion? Some statutes impose special notice requirements, extended briefing schedules, or other process requirements. Read any relevant statute with care for these requirements, as a judge will happily decide a motion on a technical defect and avoid the merits when possible.

  • Are there evidentiary barriers that could defeat the motion? Knowing these before research of the merits can save research and writing time and enable you to show any evidentiary barriers in the strongest light.

February 02, 2018

Research Tip No. 124: Law Review Articles

 Well over 100 law reviews make their articles available online. New York Law School provides these articles for download along with custom searching and scanning titles by general category. This excellent compilation provides these articles for free so you can read for work or for pleasure: http://www.nyls.edu/library/research_tools_and_sources/law_reviews_with_online_content/.

 

A map of the world is provided, showing article downloads by location, title and law school. Articles are sorted by most-often downloaded as well as by subject matter, popular authors, and chronology.

January 19, 2018

Research Tip No. 123: CFR and the Federal Register

There are free workshops and an online tutorial that can enhance your understanding and comfortable use of the Code of Federal Regulations and the Federal Register.  

 

You can download the materials and work with them locally if viewing the many files is slow online.

 

A great amount of information is available. Anyone who does federal research will benefit from these classes.

January 05, 2018

Research Tip No. 122: The Bluebook

The Bluebook is typically followed in federal courts.  Even there, those writing drafts for the court and the judges may vary from The Bluebook.  Years ago, in the 1970s, The Bluebook was called the Whitebook because the much smaller citation rulebook had a white cover.  Since then, it has ballooned into a much larger rulebook that many find overwhelming.  For example, the abbreviations for case names number well over 200.  Some words arise only rarely — discount — while others are patently obvious — Co., Ins., N.  Other words obtain so little value for the abbreviation as to justify being written out — Ave., Co., Gen., Mut., Pub.  No one engaged in writing should have to stop to look up an abbreviation.  The better approach would be to select approximately 25 words to abbreviate and always abbreviate those words when abbreviation is called for.

December 22, 2017

Research Tip No. 121: Local Rules

Most courts, perhaps all, promulgate local rules to govern proceedings in those courts. Most sets of the local rules are available in hard copy from the court and from third-party vendors, sometimes alone and sometimes packaged with other sets of rules. In addition, most local rules are available on the Internet where they are likely to be updated more rapidly. As a general rule, the judges of a specific court like their local rules. The judges expect attorneys to follow the local rules and are typically unkind to those who deviate

 

Local rules are near the bottom of the rules hierarchy. Only an individual judge's "local local rules," such as standing orders for trial, routine jury instructions, and the like enjoy lower standing. Nevertheless, the judge may place great value in these documents.

 

Vary from any of these local rules at your peril. Quote the local rules when appropriate, demonstrating your knowledge and respect. Even innocent violations warrant an apology to the court and, often, to opposing counsel.

December 08, 2017

Research Tip No. 120: DRAGNET

DRAGNET offers a search of 80 legal sites, generating up to 100 hits, ranked for relevance by Google's search engine: http://www.nyls.edu/library/library_services/dragnet1/dragnet/. The information is largely quite current and wide-ranging, including federal agency and congressional materials, testimony, markups, instructions for tax forms, state statutes, and some state materials and law review articles. The results can be broken down into recent, federal, state, and international categories.

 

DRAGNET is an excellent tool to use at the start or end of a significant research project. There is a risk at the start that the results will overwhelm the researcher who may have limited time or strength to review everything and may lack the knowledge to distinguish the more important entries from the less important. A firm focus on a specific enactment or issue can reduce the risk of flailing in the midst of too much material.

November 10, 2017

Research Tip No. 118: Dictionaries

Which dictionaries are commonly used by judges in your area? Typically, a judge will refer repeatedly to the same handy dictionary, either on the shelf in chambers or online. Multiple citations to the same dictionary over time can identify preferences, and you can look around while in chambers to see what dictionaries are there. The more you know about the judge's preferences, the better you can use that dictionary or those dictionaries to your advantage by quoting definitions for words the judge might not look up and making sure the judge knows all the relevant definitions See https://blog.oxforddictionaries.com/2017/06/judges-use-dictionaries/ 

October 27, 2017

Research Tip No. 117:  Silence of the Legislature

Stop to think before relying on the law of other states and have a good reason to do so if you do.  Good reasons might include:

  • The contract or relevant choice of law rules require application of the law of the other state

  • The action arises under a Uniform Law or similar provision-the UCC is a frequent example-that is construed to promote uniformity with the law of other states.

 

Reasons to avoid bringing the law of other states into your case include:

  • Your opponent will search for the law in other states that supports your opponent's arguments.  In the end, you may need to research the law of 10 or 20 states at major expense and limited benefit.  United States Fidelity & Guar. Co. v. Goudeau, 272 S.W.3d 603, 606-08 (Tex. 2008)

  • Citing statutes and cases from other states often requires providing copies of the out-of-state documents to the court and counsel at some expense and often significant nuisance

  • The court is not bound by the law of other states as a general rule, so the court may disregard the research; "we are not bound by the law of other states. 'The decisions from other jurisdictions, while helpful in construing the provisions of our statute, are not controlling; neither is the interpretation placed upon a statute similar to ours, binding on this Court.'" Morrison v. Burlington Industries, 1 N.C. 1, 282 S.E.2d 458, 470 (1981), quoting Stanley v. Hyman-Michaels Co., 222 N.C. 257, 266, 22 S.E.2d 570, 576 (1942).

  • Individuals are held to know federal law and the law of their own state but not the law of other states when there is no significant connection to the facts in litigation.

October 13, 2017

Research Tip No. 116:  When to Look to the Law of Other States

Stop to think before relying on the law of other states and have a good reason to do so if you do.  Good reasons might include:

  • The contract or relevant choice of law rules require application of the law of the other state.

  • The action arises under a Uniform Law or similar provision-the UCC is a frequent example-that is construed to promote uniformity with the law of other states.

 

Reasons to avoid bringing the law of other states into your case include:

  • Your opponent will search for the law in other states that supports your opponent's arguments.  In the end, you may need to research the law of 10 or 20 states at major expense and limited benefit.  See, e.g., United States Fidelity & Guar. Co. v. Goudeau, 272 S.W.3d 603, 606-08 (Tex. 2008) (listing 12 different legal tests applied by 19 states).

  • Citing statutes and cases from other states often requires providing copies of the out-of-state documents to the court and counsel at some expense and often significant nuisance.

  • The court is not bound by the law of other states as a general rule, so the court may disregard the research; "we are not bound by the law of other states. 'The decisions from other jurisdictions, while helpful in construing the provisions of our statute, are not controlling; neither is the interpretation placed upon a statute similar to ours, binding on this Court.'" Morrison v. Burlington Industries, 1 N.C. 1, 282 S.E.2d 458, 470 (1981), quoting Stanley v. Hyman-Michaels Co., 222 N.C. 257, 266, 22 S.E.2d 570, 576 (1942).

  • Individuals are held to know federal law and the law of their own state but not the law of other states when there is no significant connection to the facts in litigation.  

September 29, 2017

Research Tip No. 115:  Burden-of-Proof Research

Sometimes a statute makes it easy, declaring what the burden of proof is in a given situation or for a given cause of action.  States may have a set of relatively general sections addressing the burden of proof in frequently occurring circumstances, or there may be specific provisions in substantive laws. Other times the burden of proof may be established in case law, and electronic searching will reveal cases identifying the burden of proof that matters.  Stop and think before proceeding.

  • The nature of the parties and their relationship may alter the general burden of proof.  E.g., Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 603 (8th Cir. 2009) (fiduciary bears the burden of justifying self-dealing actions).

  • Public policies favoring or disfavoring a cause of action may increase or decrease the burden, as may be true with defamation.

  • The nature of the specific motion or proceeding may affect the burden, as with summary judgment and preliminary injunctions.

  • The burden may switch from one party to another or from a slight burden to a stricter one.

 

This discussion may appear vague.  States vary significantly on these points, making a national statement of the rule impossible.  As the Supreme Court observed in Keyes v. School Dist. No. 1, 413 U.S. 189, 209 (1973): "There are no hard-and-fast standards governing the allocation of the burden of proof in every situation."  Nevertheless, in any individual case, it is normally possible to determine the burden of proof, where it is placed, and why.

September 15, 2017

Research Tip No. 114:  Minimum Requirements

Judges often reveal in their opinions that they believe a litigant has failed to satisfy minimum research required.

  • Failure to do the minimum research required before filing suit amounts to a willful abuse of the judicial process. McCandless v. Great Atlantic & Pacific Tea Co., 697 F.2d 198, 199 (7th Cir. 1983).

  • "It is apparent from the record itself that Penn's motion for recusal and the motion for reconsideration of the denial of that motion have no basis in law and that Penn failed to conduct even the minimum amount of research that would have been necessary for him to be aware of that fact." Henderson v. Dept. of Public Safety & Corrections, 901 F.2d 1288, 1294 (5th Cir. 1990).

  • "Defendants incurred these unnecessary fees in major part due to inadequate legal research on the part of Plaintiffs' counsel, I find that both Plaintiffs and their counsel are jointly and severally liable to Defendants ...."  Royal Oak Entertainment v. City of Royal Oak, 486 F. Supp. 2d 675, 677 (E.D. Mich. 2007).

  • "Perhaps if Respondent's counsel had conducted some rudimentary legal research, Respondent would have been deterred from burdening this Court with such untenable arguments."  United States v. International Bhd. of Teamsters, 824 F. Supp. 410, 417 (S.D.N.Y. 1993), aff'd, 14 F.3d 183 (2d Cir. 1994).

September 01, 2017

Research Tip No. 113:  Retroactivity

Although not a certainty, presence of retroactive provisions or potentially retroactive provisions is likely to raise questions of constitutionality.  Research on the operation of a statute should always include an examination of both the statute and any amendments to assess their possible retroactive effects.  If so, additional research into the relevant dates of events, enactment and amendment may give rise to rights and remedies for the client.

Legislative intent notwithstanding, the court may not give a statute retroactive effect if doing so offends constitutional principles. In re Marriage of Buol, 39 Cal.3d 751, 756 (1985).

In determining whether a retroactive law contravenes the due process clause, we consider such factors as the significance of the state interest served by the law, the importance of the retroactive application of the law to the effectuation of that interest, the extent of reliance upon the former law, the legitimacy of that reliance, the extent of actions taken on the basis of that reliance, and the extent to which the retroactive application of the new law would disrupt those actions.

 

In re Marriage of Petropoulos, 91 Cal.App.4th 161, 174 (2001), quoting In re Marriage of Bouquet, 16 Cal.3d 583, 592-93 (1976).  Thus, courts have been unsympathetic to retroactive legislative denial of rights to reimbursement for previously incurred debts.  See, e.g., County of Sacramento v. Loeb, 160 Cal.App.3d 446, 459-60 (1984) ("As the Counties' contractual entitlement to the money arose at least in 1980-1981, if not before, application of a statute enacted in 1983 which purports to cut off that entitlement would clearly be retroactive" and would not be enforced.).  Retroactive changes to statutes of limitation may trigger constitutional violations,  E.g., Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350 (1995) (superseded by statute).  Even a new rule of constitutional law may trigger violations if applied retroactively.  E.g., Landgraf v. USI Film Products, 511 U.S. 244 (1994); Teague v. Lane, 489 U.S. 288 (1989); Bender, The Retroactive Effect of an Overruling Constitutional Decision: Mapp v. Ohio, 110 U. Pa. L. Rev. 650, 655-56 (1962).

August 18, 2017

Research Tip No. 112:  Editing the Constitution

Christopher G. Wren, a Scribes board member and an Assistant Attorney General in the Wisconsin Department of Justice, Criminal Appeals Unit, reported the following:

 

Courtesy of my secretary's cite-checking a brief due in the Wisconsin Supreme Court, we discovered that the Westlaw version of the U.S. Constitution is missing an entire clause.  I had cited Article II, Section 1, Clause 5, which contains the "natural born Citizen" language so much at issue these days.  My secretary, relying on Westlaw to validate the citation, advised me that the reference should be clause 4, not clause 5.  Puzzled by the discrepancy, I checked the National Archives' transcription of the Constitution <http://www.archives.gov/exhibits/charters/constitution_transcript.html>, as well as Larry Tribe's treatise and Akhil Amar's "America's Constitution: A Biography." All, of course, show the cited text as clause 5, not clause 4.  So, the Westlaw constitution has seven clauses in Art. II, section 1, while the original Constitution has eight.  I advised my secretary to keep clause 5 in the citation.

I spoke with a Westlaw reference attorney.  His initial reaction was that most of clause 3 had been superseded by Amendment XII.  (There was a debate at the time of the Constitution's ratification about whether changes to the Constitution should be made by inserting new language in the affected text and editing out any superseded language (much as we amend statutes) or should be made by leaving the original text intact and the changes appended.  The second view prevailed-except at Westlaw, apparently.)  I pointed out that Westlaw continued to include the text of the apportionment clause (Art. I, sec. 2, cl. 3) even though the "three fifths of all other Persons" language had been superseded by the Fourteenth Amendment (sec. 2), and continued to include the Fugitive Slave clause (Art. IV, sec. 2, cl. 3) despite ratification of the Thirteenth Amendment.  He acknowledged that there didn't seem to be any consistent rationale to explain omission of the original Art. II, sec. 1, cl. 3.  He will pass the issue along to Westlaw editors.

So, a couple of takeaways:  a reminder that even editorially managed databases can contain significant errors (including some likely caused by editors), and a diligent secretary can help spot errors, even if they're not yours.

 

Chris and his wife Jill co-authored "Using Computers in Legal Research: A Guide to LEXIS and WESTLAW," some years ago, so he is not easily surprised.  This editing of the Constitution was a surprise, especially as there was no note of explanation.

August 01, 2017

Research Tip No. 111:  Hierarchy of Authority

All authorities are not equal. Instead, there is a hierarchy from the U.S. Constitution down to a federal agency's general advice letter or similar document. There is a similar hierarchy of authority from a state constitution down to a state agency's advice letter.  The hierarchies are variously depicted.  E.g., http://www.hierarchystructure.com/united-states-legal-system-hierarchy/http://www.lectlaw.com/files/env02.htm; and http://tinyurl.com/zxp9mg3 

 

Recognizing the existence of the hierarchy, it makes sense to start research and rely on the best authority at the top of the hierarchy or, if nothing at the top is clear or on point, then on the best authority lower down the hierarchy that is clearer or more directly on point.

July 18, 2017

Research Tip No. 110:  Stale Research

Research done today starts getting stale by the end of the day. Decisions issued today may take several days to become meaningfully available, and the same is true with statutes and regulations. As the Ninth Circuit put it:

When a case goes on for many years, a lot of legal work product will grow stale; a competent lawyer won't rely entirely on last year's, or even last month's, research: Cases are decided; statutes are enacted; regulations are promulgated and amended. A lawyer also needs to get up to speed with the research previously performed.

 

Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008).

As a result of this practical reality, date all research memos to know where to pick up research in the future.  If possible, keep the headnote references for each case so you can use them again.  Keep notes on any research you did not do.

When a brief is filed, calendar the day before the hearing to update the brief.  

July 04, 2017

Research Tip No. 109:  String Cites

String cites are so often criticized that their continued use might be seen as remarkable.  Yet there are proper uses of string cites.  There are some rules: always provide the jump page, always explain how each cited case relates to your case, be scrupulously honest in describing the cases.  Never use a string cite if the point can be satisfied by a recent court decision.  The situation should cry out to you as appropriate for the listing as you will prepare it.  Here are some examples of situations where a string cite might be appropriate:

  • Your action or practice, or the judge's, was criticized as idiosyncratic yet multiple cites with explanations refute the claim.

  • The string lists settlement amounts in similar cases with brief explanations (broken arm and shoulder), (broken hip, 2 weeks in hospital), (broken wrist, 3 months physical therapy).

  • The string collects cases considering age of witness (5 years, shy and withdrawn, denied), (7 years, nature and articulate), (9 years, skipped a year in school).

  • The string collects clerical errors and resulting corrective orders.

  • The string lists statutes all adopting the same jurisdictional test.

June 20, 2017

Research Tip No. 108:  Robert C. Berring, Jr.

A professor at Boalt Hall, University of California at Berkeley, Robert Berring has prepared a series of DVDs that can be downloaded as podcasts. Each session provides a clear explanation of legal research principles.  When appropriate, Berring provides the history necessary for the concept to make sense.  These podcasts are clear and concise, reflecting Berring's wit and enjoyment of research, and well worth listening to several times.

 

http://www.berringlegalresearch.com/podcast.asp 

June 06, 2017

Research Tip No. 107:  No Authority for the Proposition

A brief that states a proposition and cites no authority is easily rejected on that point.  The brief effectively tells the court: "You find the authority because I couldn't or I didn't bother."  It's easy to guess how courts react.  The result is that some form of authority is essential to move the argument forward.  Ideal would be a U.S. Supreme Court decision stating the proposition.  Any other court decision would work, with higher courts better than lower and courts of the same jurisdiction better than those of other jurisdictions.  A decision by an administrative board will work, especially if its subject matter is relevant, although the decision would be persuasive only.

 

Failing to find authority specifically on point is not necessarily fatal.  Courts will consider and sometimes follow authority by analogy. One consideration includes how well the analogy matches up; a good match might arise if the argument seeks to apply an approach under one labor law to a case arising under another labor law.  The argument should explain why the analogy makes sense; what relationship exists between the case at hand and the analogy such that the analogy is persuasive.  Arguments by analogy are never perfect.  Make the best analogy and explain it.  Provide any other support for it.  L. Weinreb, Legal Reason: The Use of Analogy in Legal Argument (2005); Brewer, Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument by Analogy, 109 Harv. L. Rev. 925 (1996).

May 23, 2017

Research Tip No. 106:  Not the Function of this Court

Appellate courts narrow the scope of issues they must consider on appeal, often by summarily declining to address an issue.  For example,

  • "it is not the function of this Court to do a party's legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument."  Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So. 2d 1, 9 (Ala. 2007). 

  • "it is not the function of this Court to graft its own policy values onto a statute"  White v. Burlington Northern & Santa Fe R.R., 364 F.3d 789, 814 (6th Cir.2004), aff'd, 548 U.S. 53 (2006).

  • " 'It is not the function of this court to make new independent findings upon evidence which we did not hear' "  State v. Abbott, 498 P.2d 712, 730 n.60 (Alas. 1972), quoting Patrick v. Sedwick, 413 P.2d 169, 174 (Alas. 1966).

  • "It is not the function of this Court to usurp or second guess counsel's trial strategy." Baze v. Commonwealth, 23 S.W.3d 619, 624 (Ky. 2000), followed in Commonwealth v. York, 215 S.W.3d 44, 48 (Ky. 2007).

  • "It is not the function of this court to search the record for possible errors, but only to rule as to errors specifically claimed. "  Lutz v. Longview, 83 Wash. 2d 566, 571, 520 P. 2d 1374, 1379 (1974).

May 09, 2017

Research Tip No. 105: Not a Cause of Action

Some combinations of law and fact have been held not to state a cause of action as a matter of law. The following list is collected from California cases.  Collect the list and authorities for your state, and you will use it repeatedly over the years of your practice.  Add to your list whenever you spot a new example.  Plaintiffs' lawyers frequently plead claims that fail to state a cause of action.  A list such as this makes the demurrer or motion to dismiss easy.

 

  • Remedies such as injunctive relief, rescission, specific performance, punitive damages, and other remedies.  Mesa Shopping Center-East, LLC v. Hill, 232 Cal.App.4th 890, 900 (4th Dist. 2014); Barroso v. Ocwen Loan Servicing, LLC, 208 Cal.App.4th 1001, 1007 n.2 (2d Dist.2012).

  • Conspiracy. Navarette v. Meyer, 237 Cal.App.4th 1276, 1288-89 (4th Dist.2015).

  • Class action, and other procedures affecting joinder of parties.  Little v. Sanchez, 166 Cal.App.3d 501, 506 (2d Dist.1985).

  • Alienation of affection, criminal conversation, seduction of a person over the age of consent, and breach of promise to marry.  Cal. Civil Code §§43.4, 43.5, 43.56; see Graham, Why Torts Die, 35 Fla. St. U.L. Rev. 359 (2008); McMillian, Adultery as Tort, 90 N.C.L. Rev. 1987 (2012); Sweeny, Undead Statutes: The Rise, Fall, and Continuing Uses of Adultery and Fornication Criminal Laws, 46 Loy. U. Chi. L.J. 127 (2014).

  • Future impregnation, breach of promise to impregnate.  Perry v. Atkinson, 195 Cal.App.3d 14, 19 (4th Dist.1987).

  • Wrongful life actions against a parent, Cal. Civil Code, §43.6; Health and Safety Code §123420(a); Turpin v. Sortini, 31 Cal.3d 220 (1982), as compared to such actions against other defendants.  Ermoian v. Desert Hospital, 152 Cal.App.4th 475, 492-93 & n.20 (4th Dist.2007) ("Wrongful life is a form of a medical malpractice action."); see Annot., Tortious Maintenance or Removal of Life Supports, 100 A.L.R.6th 477 (2014).

  • Negligent infliction of emotional distress. Christensen v. Superior Court, 54 Cal.3d 868, 884 (1991); Fortman v. Forvaltningsbolaget Insulan AB, 212 Cal.App.4th 830 (2d Dist. 2013).

  • Communications intended to aid in evaluation of the qualifications, fitness, character or insurability of a practitioner of the healing or veterinary arts. Cal. Civil Code §43.8.

  • Communications to the State Bar relating to lawyer misconduct, disability or competency and testimony in proceedings against attorneys.  Cal. Bus. & Prof. Code §6094(a).

  • Unjust enrichment, at least when the parties have an express contract, Levine v. Blue Shield of California, 189 Cal.App.4th 1117, 1138 (4th Dist.2010).

  • Bad faith denial of contract. Freeman & Mills, Inc. v. Belcher Oil Co., 11 Cal.4th 85, 103 (1995); Norager v. Nakamura, 42 Cal.App.4th 1817 (1st Dist.1996).

  • Breach of the covenant of good faith and fair dealing as a tort, outside insurance.  Freeman & Mills, Inc. v. Belcher Oil Co., 11 Cal.4th 85, 102-03 (1995); Hecimovich v. Encinal School Parent Teacher Organization, 203 Cal.App.4th 450, 477 (1st Dist.2012).

  • Negligent interference with contractual relations. Davis v. Nadrich, 174 Cal.App.4th 1, 9-10 (2d Dist.2009).

  • Negligent misrepresentation causing emotional injury only.  Friedman v. Merck & Co., 107 Cal.App.4th 454, 484-87 (2d Dist.2003).

  • Intentional third party spoliation of evidence and intentional first party spoliation of evidence, in the absence of a contractual or other obligation.  Temple Community Hospital v. Superior Court, 20 Cal.4th 464, 469-471 (1999); Cedars-Sinai Medical Center v. Superior Court, 18 Cal.4th 1, 8-13 (1998).

  • Negligent spoliation of evidence. Strong v. State, 201 Cal.App.4th 1439, 1458-60 (2d Dist.2011).

  • Perjury and abuse of process by filing false declarations.  Temple Community Hospital v. Superior Court, 20 Cal.4th 464. 472 (1999); Pollock v. University of Southern California, 112 Cal.App.4th 1416, 1430-31 (2d Dist.2003) ("There is no civil cause of action for 'perjury.'").

  • Gross negligence, absent a statutory foundation. City of Santa Barbara v. Superior Court, 41 Cal.4th 747, 779-80 (2007); Rosencrans v. Dover Images, Ltd., 192 Cal.App.4th 1072 (4th Dist.2011).

  • Aiding and abetting an open-meeting-act violation. Wolfe v. City of Fremont, 144 Cal.App.4th 533, 552 (1st Dist.2006).

  • Clergy malpractice. Nally v. Grace Community Church, 47 Cal.3d 278, 298 (1988), cert. denied, 490 U.S. 1007 (1989); Richelle L. v. Roman Catholic Archbishop, 106 Cal.App.4th 257 (1st Dist.2003); Chopko, Stating Claims Against Religious Institutions, 44 B.C.L. Rev. 1089 (2003).

  • Reckless disregard of property right and malicious misconduct and malicious interference of economic capacity. Mobley v. Los Angeles Unified School District, 90 Cal.App.4th 1221, 1239-40 & n.11 (2d Dist.2001).

  • Piercing the corporate veil. Cheng, Form and Substance of the Doctrine of Piercing the Corporate Veil, 80 Miss. L.J. 497 (2010); Halabi, Veil-Piercing's Procedure, 67 Rutgers U.L. Rev. 1001 (2015); McPherson & Raja, Corporate Justice: An Empirical Study of Piercing Rates and Factors Courts Consider When Piercing the Corporate Veil, 45 Wake Forest L. Rev. 931 (2010); Oh, Veil-Piercing Unbound, 93 B.U.L. Rev. 89 (2013).

  • Violation of a statutory definition. Kim v. Westmoore Partners, Inc., 201 Cal.App.4th 267, 285 (4th Dist.2011).

April 25, 2017

Research Tip No. 104: Terms of Art

The legal world teems with terms of art, many of which look like ordinary words.  Failure to recognize these terms of art means that they are not researched and treated as terms of art and that authorities that could have been useful are not recognized as such.  Some examples:

  • " 'Fraudulent joinder' is a term of art, it does not reflect on the integrity of plaintiff or counsel, but is merely the rubric applied when a court finds either that no cause of action is stated against the nondiverse defendant, or in fact no cause of action exists. In other words, a joinder is fraudulent if 'there [is] no real intention to get a joint judgment, and ... there [is] no colorable ground for so claiming.' " AIDS Counseling & Testing Centers v. GROUP W TV, Inc., 903 F.2d 1000, 1003 (4th Cir. 1990), quoting Lewis v. Time Inc., 83 F.R.D. 455, 460 (E.D.Cal.1979) (further citations omitted).

  • "Since substantial burden is a term of art in the Supreme Court's free exercise jurisprudence, we assume that Congress, by using it, planned to incorporate the cluster of ideas associated with the Court's use of it."  Westchester Day School v. Village of Mamaroneck, 504 F.3d 338, 348 (2d Cir. 2007).

  • "An undefined statutory term must be accorded its plain and ordinary meaning.  A lay dictionary may be consulted to define a common word or phrase that lacks a unique legal meaning. A legal term of art, however, must be construed in accordance with its peculiar and appropriate legal meaning."  Brackett v. Focus Hope, Inc., 753 N.W.2d 207, 211, 482 Mich. 269 (2008) (citations omitted).

 

Uncertainty whether particular term or phrase may be a term of art is best resolved early in the proceedings.  A search of all relevant cases for the term and phrase near "term  of art" will usually resolve the issue.  If the point is sufficiently important, the search can be done broadly to locate the cases in other jurisdictions that address the question.

April 11, 2017

Research Tip No. 103: Make an Old Case Younger

After searching a long time, you've finally found a case that states the principle critical to your client's argument.  It was published in 1876, with a great quote, and it has never been overruled or criticized.  Your work is not done.  This old case needs to be revitalized by citations (at least) or quotations and descriptions of recent cases applying the principle.  Your 1876 case may be good law, but it is little help if it has been ignored.  The critical principle needs to reappear in a variety of cases similar to yours from 1876 to 2017.

 

Start with the headnote, if the critical principle was headnoted in any set of the relevant cases, and update that headnote fully.  If there was no headnote for the point, then update the 1876 case, looking for a later case that did headnote the point.  If the 1876 case cited an earlier case, then check if the point was headnoted in that case.  Work your way through the cases that turn up as you update.

 

Run some searches for distinctive words in the 1876 case and the great quote.  Does the language appear in other cases (especially in your jurisdiction) or in the Restatement.  For example, you might end up with a citation like the following:

Smith v. Jones, 102 xxx 302, 307 (1876), followed in Taylor v. Klein, 498 xx2d 876, 879-80 (2010) ("quotequote"), and in Restatement 3d of Contracts § 12345 ("quotequote").

 

Depending on the importance of the argument, you might discuss the 2010 case in the text along with one or more other cases. The key is that the 1876 case is not dead but is alive today.

January 01, 2020

Research Tip No. 102: A Variety of Research Tips

The following materials provide legal research tips that you may find valuable:

March 14, 2017

Research Tip No. 101: Acronyms and Abbreviations

Some acronyms or abbreviations are widely recognized and pose little opportunity for confusion.  NASA is an example as are scuba and ASAP.  More often, acronyms and abbreviations used in one interest group for one meaning may reappear with a very different meaning in another interest group.  Here are some websites of interest on the subject:

 

Before using an acronym or abbreviation, use the Internet to reveal whether the term has multiple meanings that may be confusing to readers.  Consider whether a table of acronyms and abbreviations is sufficient or if each chapter should include the full term the first time the acronym or abbreviation is used.

Another issue to consider is whether the acronym or abbreviation is associated with one side of a controversial issue.  For example, the Pro-Life Activist's Encyclopedia Published by American Life League sets out a long list with definitions and, for some, a note whether the organization is pro-life or pro-choice.  www.ewtn.com/library/prolenc/appendd.htm  Unless a writer actively seeks an association with a particular group or side, avoidance of these acronyms and abbreviations may be the best course.

February 28, 2017

Research Tip No. 100: Front Matter

Substantial time may be wasted searching for the relevant Code section or relevant segment in a treatise.  An abstract or a table of contents is not a guarantee that the search will be easier, but a scan down the table of contents will often bring you to the desired materials.  In a large treatise, having the chapter table of contents at the start of the chapter can be a further benefit by reducing the burden of flipping back and forth.

 

Research shows that an article published with a table of contents is 30% more likely to be cited in a law-review article; an article with an abstract is 50% more likely to be cited, and an article with both table of contents and abstract is 70 percent more likely to be cited.  Petherbridge & Cotropia, Should Your Law Review Article Have an Abstract and Table of Contents?, Loyola Law School, Los Angeles Legal Studies Research Paper No. 2016-39, ssrn.com/abstract=2505115 (Aug. 25, 2014).

 

Front matter may also include a list of abbreviated terms and their meanings. Such a table can significantly aid the reader, especially when multiple acronyms or obscure acronyms are used.

February 14, 2017

Research Tip No. 99: Where to Start?

Legal research rarely presents a single isolated question.  Even an issue as straightforward as what is the statute of limitations for slander of title is likely to include subtopics on what jurisdiction and why, what is slander of title, what is the accrual rule, and whether there are relevant tolling rules.  Given this assignment, different attorneys could start with any of the subtopics, work their way around to the others, and all end with a satisfactory result.

 

The key is not to be overwhelmed.  The subtopics for any assignment will usually contain at least one subject that is familiar based on unrelated research. What is slander of title?  Reading those cases may well lead to cases that discuss the statute of limitations.  The statute's annotations will also reveal the accrual and tolling rules.  There may be other subtopics to be discovered.  By breaking the task into identifiable parts, no single part is so large or strange as to be overwhelming.  

January 31, 2017

Research Tip No. 98: Law Librarians

Law schools, county and state law libraries, large law firm libraries, and other library facilities are often staffed by individuals who are true law librarians.  They may be attorneys but they are trained librarians with special training and experience in the law.  A library may have one true law librarian and several library staff, with the latter having gained their knowledge through experience.

 

A law librarian can be an attorney's best friend.  No one is likely to know the nature and quality of the library's resources better than the law librarian.  A law librarian will know to ask whether the attorney has checked the local rules and then assist the attorney in finding them.  The law librarian will normally know that a particular group of books are in someone's office and that the on-line version of a resource is updated monthly (while the print version is only updated annually).

January 17, 2017

Research Tip No. 97: What Books Does the Judge Have?

If the judge or other vital person doesn't have the law reporter or other material you are citing handy, then you need to change the nature of what you provide.  Busy people are unlikely to take the elevator down six flights and search in the county law library.  If you want someone to read it, provide a copy or a web citation.

Call chambers to ask the secretary or clerk what sets of books the judge has in chambers.  If you have a heading in chambers, make a list as you look around.  If your state has two sets of codes, note which one the judge has so you will know to check it as you research.  The two sets will differ, sometimes in remarkable ways, and you need to know.

If the judge cites a source in an opinion, then you need to know what that source says.  People naturally return to a source they like and trust, and you need to know so you can counter a point in that source that hurts your client and bolster the point that helps.

January 03, 2017

Research Tip No. 96: Have You Seen All Statutes That Apply to or Affect the Statute?

Statutes are typically organized in an outline format.  California, for example, organizes statutes into Code, Division, Part, Title, Chapter, Article and section.  An individual section may be affected by provisions in each of the ascending categories.  An Article or Title may have a statute declaring that the provisions in this Article govern the use of automobiles on public roads.  If so, an accident occurring on a private road or an accident involving two farm vehicles would not be governed by a section in the Article or Title.  Definitions are often located in the Division, Part, or Title; these may be helpful or harmful, but woe to the attorney who does not discover the definitions.

December 20, 2016

Research Tip No. 95: Jury Instructions

If your state has approved pattern jury instructions or something similar, take advantage of these in your research and briefing.  Judges are comfortable with standard jury instructions and may have used them for years.  The wording is familiar, and judges are generally comfortable with the accuracy of these statements of the law.  In these circumstances, cite and quote instructions that benefit your case.

 

Many books with standard jury instructions often contain explanatory matter identifying when an instruction is used and when it is not.  There are often citations to cases on point and other authorities.  Again, absent a clear reason not to use this material, cite and quote it.  It may be the clearest statement of the law available to you.

December 06, 2016

Research Tip No. 94: Was the Statute Effective When the Events Occurred?

Having the current version of the statute has little benefit when the contract was breached, the accident occurred or other critical past events mean that the version of the statute that controls the case is not the current version.  The inquiry is not limited to locating the version on the date of the events.  There may have been a number of events — which one controls?  The legislature may have included express language setting an effective date into the future or making the change in the law retroactive. 

November 22, 2016

Research Tip No. 93: Do you have the Right and Complete Statute?

Internet searches for a specific statute will typically reveal many different versions of the statute.  Most or all look fine, appearing to be accurate and current. In fact, some maybe prior versions, others maybe proposed versions, and still others may have been altered in some way for reasons that may become clear on reading the accompanying documents.

 

Protect yourself from the danger of relying on inaccurate statutory language by using commercial sources that have to be correct or by turning to the state legislature's website.  Most state legislatures maintain their own websites with substantial information about current and former statutes.  One good source for these is American Law Sources On-line at www.lawsource.com.

November 08, 2016

Research Tip No. 92: Porers and Skimmers

Readers fall into a continuum from porers to skimmers.  Both can function well in legal careers, but understanding oneself can enhance the quality of research.  Porers read very thoroughly, squeezing all there is out of the cases they read.  But they cannot read as many cases as the skimmers can; the day isn't long enough.  Skimmers can review a great many cases, discarding the irrelevant and focusing on the most helpful.  But they cannot read all the cases as carefully so they may miss points that are helpful or hurtful.

 

Techniques that aid porers include enhanced selection of cases to read. The fewer irrelevant cases a porer reads, the more time can be spent on the cases with value.  Using the digest for the jurisdiction or carefully honed computer search terms may help.  The skimmer can range more widely, flagging cases of possible interest along the way, and always being conscious of the risk of skimming over the important point.  Simply recognizing one's own characteristics may ensure that fewer errors occur. On big projects, when two or more attorneys can be assigned, there is great value in combining the efforts of both porers and skimmers.  Take the best advantage of the available staff.

October 25, 2016

Research Tip No. 91: Codes and Committees

A legislator seeking to have a bill enacted may have a choice of several committees in the legislature to push the bill forward.  The legislator may have drafted the bill with a tilt in subject matter or vocabulary to ensure that the bill would go through the desired committee.  Why would one committee be more desirable than another?  A more liberal or conservative bent of its members, their special knowledge of facts relevant to the bill, the animus or friendliess of the chair, and a variety of other factors influence the decision.  If the bill is enacted, the identity of the committee may affect or determine which Code will contain the published law.

So it is in California.  A law is not codified to the Food and Agriculture Code because the law especially concerns food or agriculture but because it was filed in the Assembly or Senate Agriculture Committee.  Such a law might be codified to the Health Code or to another Code based on its passage through the Health or another Committee.  The result is that one cannot use the Food and Agriculture Code index and believe that it includes all potentially relevant statutes. 

October 11, 2016

Research Tip No. 90: The Law Book Index

A set of state or federal statutes, a legal treatise, and other legal writings normally have an index to assist in locating points of specific interest.  These points may well be essentially undiscoverable without the index, so one might conclude that the index would be prepared by individuals of particular skill and knowledge in the subject matter.  Sadly, that is rarely the case.

September 16, 2016

Research Tip No. 89: Providing Citations

There is one circumstance in which the litigant's duty to provide citations is especially strong.  "Parties who want to distinguish or alter existing law must acknowledge its force; they may not pretend that the law favors their view and impose on the court or their adversaries the burden of legal research to uncover the basic rule." In re Central Ice Cream Co., 836 F.2d 1068, 1073 (7th Cir. 1987), citing Szabo Food Service, Inc. v. Canteen Corp., 823 F.2d 1073, 1081-82 (7th Cir. 1987), cert. denied, 485 U.S. 901 (1988); Hill v. Norfolk & Western Ry., 814 F.2d 1192, 1198 (7th Cir. 1987); Thornton v. Wahl, 787 F.2d 1151, 1154 (7th Cir.), cert. denied, 479 U.S. 851 (1986).  The litigant who knows the existing law cannot pretend not to know and present the proposed alternative argument as though the existing law did not exist.

August 30, 2016

Research Tip No. 88:  What is Legal Research?

As explained in Williams v. Leeke, 584 F.2d 1336, 1339 (4th Cir. 1978), cert. denied, 442 U.S. 911 (1979): "Legal research often requires browsing through various materials in search of inspiration; tentative theories may have to be abandoned in the course of research in the face of unfamiliar adverse precedent. New theories may occur as a result of a chance discovery of an obscure or forgotten case."  Accord, Toussaint v. McCarthy, 801 F.2d 1080, 1110 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987).

 

How true it is.  Legal research is perhaps two-thirds hard work and one-third serendipity.  Perhaps 90 percent hard work and 10 percent serendipity is more accurate.  The correct division depends on the day and the subject.  Never fail to brainstorm and to examine the index or table of contents of any books of possible relevance.  A truly compelling proposition will have some authority of some kind.

August 16, 2016

Research Tip No. 87:  Not the Function of the Court

Numerous decisions declare, as did the Alabama Supreme Court, "'it is not the function of this Court to do a party's legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.'" Butler v. Town of Argo, 871 So.2d 1, 20 (Ala. 2003), quoting Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala. 1994), citing Spradlin v. Spradlin, 601 So.2d 76 (Ala. 1992).  

 

Remarks of this sort typically appear when a litigant has stated a legal point entirely without authority.  The better approach is for the litigant to do one or more of the following:

  • State, cite, and explain clear direct statutory or caselaw authority.

  • State, cite, and explain statutory or caselaw authority that is applicable by analogy.

  • State, cite, and explain authority from other jurisdictions with any links in the authority to the law of the state at issue.

  • Cite and explain regulations from any jurisdiction that support the proposition.

  • Identify, cite, and explain any secondary sources that support the proposition.

  • State and explain any public policies or well-recognized procedures that support the proposition.

 

The research to locate these authorities may well lead to the direct authority that is most desired.  When a state's law is silent but the proposition is compelling, then the court may be moved to adopt the proposition, but a court is likely to do so only when the arguments in support are strong and supported by what authority can be located.

August 02, 2016

Research Tip No. 86:  Wombats

Legal research is much more than locating the statute or case that answers the question at hand.  Often, no single statute or case exists with the answer.  The researcher may be asked whether wombats may be brought into Kansas.  Initial questions would be what are wombats, where do they come from, what inherent risks might they pose, what environmental risks would they pose in Kansas or nearby states.  Broadening the scope from wombats, the researcher might look for law on importation of exotic animals and large burrowing animals generally. Any law that exists may have exceptions—zoos or universities, perhaps, or wombats that have been surgically altered so they cannot breed.  The questions must be considered, at a minimum, under federal and Kansas law and perhaps under local jurisdictions in Kansas.  As the work proceeds, other questions will surface and the work may continue for an extended time.

 

An individual doing research in these circumstances can enhance the value of the work by identifying

  • Points that were exhaustively researched

  • Points that were researched to a stated limit (Kansas law, but not the law of local jurisdictions)

  • Points that were considered and discarded

  • Kinds of research that were or were not pursued (law reviews but not environmental journals; articles after 2000 but not before; Australian materials).

July 19, 2016

Research Tip No. 85: The Court's Own Research

Numerous cases hold that it is not the court's duty or function to perform a litigant's legal research. E.g., City of Birmingham v. Business Realty Inv. Co., 722 So.2d 747, 752 (Ala. 1998) (later history omitted). Although not obligated, courts do their own research often and one side or the other is benefited by that research.  The court may do research for various reasons, but the reason that typically applies is the court's own desire to make the right decision.  Aside from the intellectual satisfaction, trial judges know that the appellate court will remember that the trial judge got it wrong.

When the court relies on its own research, it often fails to give the parties a meaningful opportunity to speak to the case or statute the court has located. E.g., Glassalum Engineering v. 392208 Ontario Ltd., 487 So.2d 87, 88 (Fla. App. 1986).  When the court's research has revealed no case on point, as did counsel's research, then there is no problem.  When the court's research turned up the critical case or line of cases, however, counsel should normally be given notice to appear for oral argument prepared to address what the court has found.  Or the court might offer an opportunity for supplemental briefing before issuing the ruling.  The issue may be resolved on motion for reconsideration, but the losing attorney is fighting to climb uphill against the judge's own research on a motion for reconsideration.

 

The California Government Code addresses the subject by statute applicable to the appellate courts.  Enacted in 1986, section 68081 provides:

Before the Supreme Court, a court of appeal, or the appellate division of a superior court renders a decision in a proceeding other than a summary denial of a petition for an extraordinary writ, based upon an issue which was not proposed or briefed by any party to the proceeding, the court shall afford the parties an opportunity to present their views on the matter through supplemental briefing. If the court fails to afford that opportunity, a rehearing shall be ordered upon timely petition of any party.

 

Whether other states have statutes on this point remains to be seen; modest searching does not reveal them.

July 05, 2016

Research Tip No. 84:  Cite Checking Techniques

 

Westlaw and Lexis are handy in that one can use them to cite check a wide variety of materials.  Nevertheless, cite checking can be more reliable closer to the source.  Thus, a section of the Constitution might be checked against the version at the National Archives, http://www.archives.gov/exhibits/charters/constitution_transcript.html, the White House, https://www.whitehouse.gov/1600/constitution, Congress, https://www.congress.gov/constitution-annotated/, the Government Printing Office, https://www.gpo.gov/fdsys/pkg/CDOC-110hdoc50/pdf/CDOC-110hdoc50.pdf, and other sources.  Better yet, when accuracy is especially important, the cite checking can be done using two or three of these sources so that any differences will appear and can be addressed.

 

Westlaw and Lexis sometimes assign case names to published cases that differ from the names appearing in the actual published volume or differ from the court decision issued by the court. The official reporter may use a name that differs from the one used in the West Regional Reporter.

 

The text of court decisions can vary for no apparent reason.  I was checking a U.S. Supreme Court decision some time ago and found that the Court's slip opinion, West's Supreme Court Reporter and Lawyer's Edition used "would," "could," and "should."  Each term lent a different nuance to the sentence, and the official U.S. Reports would not be issued for several years.  My solution was to provide all three terms and their sources, then to argue the merits.