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.

June 21, 2016

Research Tip No. 83:  The Statutes at Large Control

Even those who report and codify the law make mistakes.  Unless a federal statute has been enacted into positive law, the Statutes at Large control over the United States Code.  Statutes in the following U.S. Code Titles have been enacted into positive law: 1, 3, 4, 5, 9, 10, 11, 13, 14, 17, 18, 23, 26, 28, 31, 32, 34, 35, 36, 37, 38, 39, 40, 41, 44, 46, 49, 51. 

The point is brought home in the following excerpt from United States Nat'l Bank v. Independent Ins. Agents of Am., Inc., 508 U.S. 439, 448, 113 S.Ct. 2173, 2179, 124 L.Ed.2d 402 (1993):

 

Though the appearance of a provision in the current edition of the United States Code is "prima facie" evidence that the provision has the force of law, 1 U.S.C. § 204(a), it is the Statutes at Large that provides the "legal evidence of laws," § 112, and despite its omission from the Code section 92 remains on the books if the Statutes at Large so dictates.3 Cf. United States v. Welden, 377 U.S. 95, 98, n.4, 12 L. Ed. 2d 152, 84 S. Ct. 1082 (1964); Stephan v. United States, 319 U.S. 423, 426, 87 L. Ed. 1490, 63 S. Ct. 1135 (1943)(per curiam). The analysis that underlies our conclusion that section 92 is valid law calls for familiarity with several provisions appearing in the Statutes at Large. This section provides the necessary statutory background.

 

FOOTNOTES: 3. When Congress has enacted a title of the Code as positive law (as it has done, for instance, with Title 11, the Bankruptcy Code, see § 101, 92 Stat. 2549), the text of the Code provides "legal evidence of the laws." 1 U.S.C. § 204(a). But Congress has not enacted as positive law Title 12, in which section 92 for a time appeared.

 

See Scribes Research Tip No. 1 (June 18, 2013). http://www.scribes.org/#!research-tips/ih13r.

June 07, 2016

Research Tip No. 82:  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.

May 24, 2016

Research Tip No. 81:  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://tinyurl.com/z2p5fxs/http://www.lectlaw.com/files/env02.htm; and http://tinyurl.com/zxp9mg3.

 

Recognizing the existence of the hierarchy, the researcher should 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.

May 10, 2016

Research Tip No. 80:  Alternatives for Access to Law-Review Articles

Someone with favorable access to subscription legal research is likely to use that to get law-review articles of interest.  The searching and updating features have many benefits.  Many researchers do not have that benefit, however, and end up searching the Internet for free versions.

 

If an article is not available through an open-access source, check the website for the law review itself.  Some law reviews make their own articles available for download for free.  If that does not work, consider communicating directly with the author.  Authors rarely include everything they know in their articles, and they may be willing to share their thoughts and perhaps more if you catch them at a good moment.  Experience as an author of several treatises and a collection of law-review articles has revealed that few attorneys communicate with authors.  Not all authors welcome such communications, but many do.

April 26, 2016

Research Tip No. 79: Robert C. Berring, Jr.

A professor at Boalt Hall, University of California at Berkeley, Robert Berring has prepared a series of podcasts on legal research, available for free downloading. 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 

April 12, 2016

Research Tip No. 78:  Taxonomy as a Guide for Statutory Interpretation

Like most states, California uses an outline format for its statutes.  Take the Civil Code for example. The Code is divided into five Divisions, with the headings Persons, Property, Obligations, and General Provisions.  Each Division has a number of Parts, with Parts divided into Titles, Chapters and Articles.  Here is an excerpt of Division 4:

 

DIVISION 4.  GENERAL PROVISIONS

PART 1.  RELIEF

TITLE 1.  RELIEF IN GENERAL .................................... 3274-3275

TITLE 2.  COMPENSATORY RELIEF

CHAPTER 1.  DAMAGES IN GENERAL

Article 1.  General Principles ............................... 3281-3283

Article 2.  Interest as Damages .............................. 3287-3291

Article 3.  Exemplary Damages ................................ 3294-3296

CHAPTER 2.  MEASURE OF DAMAGES

Article 1.  Damages for Breach of Contract ................... 3300-3322

Article 2.  Damages for Wrongs ............................. 3333-3343.7

Article 3.  Penal Damages .................................... 3344-3346

Article 4.  General Provisions ............................... 3353-3360

TITLE 3.  SPECIFIC AND PREVENTIVE RELIEF

 

One can assume and find cases to support the position that the contents of sections 3274-3275 apply to all of the sections in Part 1.  Likewise, Article 4 has provisions relating to the measure of damages generally and is relevant to the other three Articles in Chapter 2.

 

An examination of the format for statutes can thus provide guidance in understanding the relationships of statutes to each other.  Many statutory compilations offer this sort of outline format in the early pages, enabling readers to see the big picture before delving into the language of a particular statute.

March 29, 2016

Research Tip No. 77:  Headings

States vary in the degree to which the contents of a statute may be construed by consideration of its heading.  States may hold that the heading can be helpful to focus the reader on the substantive content of the material. State v. Whelchel, 97 Wash. App. 813, 820, 988 P.2d 20, 24 (1999) ("a heading, although helpful to focus a reader on the substantive content of a rule, is not part of the rule"); State v. White, 180 Wis.2d 203, 213, 509 N.W.2d 434, 437 (1993) ("While a heading is not part of the law, it can be persuasive in the interpretation given to the statute."). In some states or situations, the legislature enacts the headings. In others, headings are drafted and added by the compiler or reporter of statutes. This distinction is sometimes identified as explaining the approach taken in the state. People v. Avanessian, 76 Cal.App.4th 635, 641-42, 90 Cal.Rptr.2d 367, 371 (1999). The federal courts and many state courts accept statutory headings as helpful indications of meaning and as a way to resolve ambiguities. 

 

The key is to learn the rule in the jurisdictions where you practice. Take advantage of a rule permitting use of the caption and be prepared to challenge your opponent's use when it is improper. The statutory caption can be valuable only when you rely on it properly.

March 15, 2016

Research Tip No. 76:  Presumption Against Repeals by Implication

All or virtually all jurisdictions recognize a presumption against construing later statutes to repeal earlier statutes by implication. E.g., National Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 662-63 (2007); State v. Piazza, 596 So.2d 817, 819 (La. 1992); Cimo v. State of New York, 306 N.Y. 143, 148, 116 N.E.2d 290, 293 (1953). When faced with multiple statutes bearing in some manner on the issues in a case, an attorney may be able to use the presumption to advantage: Statute A cannot be construed as suggested by an adversary because that construction would necessarily repeal Statute B by implication. With the right combination of statutes, a compelling argument can be developed. The argument should not be made when it cannot hold together, so this technique requires careful research and a willingness to walk away from a failing argument.

March 01, 2016

Research Tip No. 75:  Start with the Jury Instructions

When drafting a complaint, motion to dismiss, summary judgment motion, trial brief, or other document intended to persuade the court, the best place to locate the elements of a cause of action or defense is often the pattern jury instructions. These instructions are often written by judges, and trial judges are familiar and comfortable with the regular pattern instructions that they use. 

 

Jury instructions provide the elements in a convenient numbered format, designed to be easy for jurors to understand, and the instructions can readily be used to draft pleadings and motions. When the complaint's allegations or facts fail to set out a clear requirement, such as reliance in a fraud action, the instruction can form the basis for dismissal or summary judgment. In straightforward cases, nothing more need be cited. The Use Notes or similar annotations may provide variations on the rule and other valuable information.

 

Many attorneys leave the jury instructions on the shelf until shortly before trial, misunderstanding the usefulness of this handy tool.

February 16, 2016

Research Tip No. 74:  How Many Citations?

How many citations are too many? For the simple points we all learned in law school, even one may be too many. For the tough point that is the crux of the argument, there may be no cap, but it depends on how the tough point is presented.

 

If you offer the tough point in one too-large-to-swallow lump—the sun rises in the west, two plus two equals fiveno number of citations will suffice to support the point. The key is to subdivide the point into reasonable subpoints, each with citations, so that the reader is carried to the conclusion. 

 

Here's one way for litigators to think of the problem. Judges do not like to go where no judges have gone before. When there is no clear and applicable citation for the tough point, use the subpoints and their citations to prove that many judges have gone the same way before. The little bites with their supporting citations can walk the judge step by step to the desired result when the same judge would have rejected that result if it were offered without the many steps.

February 02, 2016

Research Tip No. 73:  Stop to Think

Before starting a research task, stop to think a few minutes about the nature, purpose and scope of the assignment. Why are you doing this work? How will it be used? By whom?

 

The task may be an isolated research project for a single client, perhaps confined to a single, specific case. This type of job is typically highly targeted, based on information that is specifically relevant to the single client and of no interest to others. On the other hand, the task may be intended to benefit many clients and to be used multiple times, with or without revisions as needed. For this type of job, you must survey a wider area and provide answers to clients who are similar but not necessarily identical.

 

If you don't know at the outset which kind of research you are doing, it is likely that you will flounder for a time and be unproductive. You must know the client audience before you start because this knowledge can make a great difference in the end document. The test here is not how quickly you can start the research but how productive it will be in the end.

January 19, 2016

Research Tip No. 72:  Rule Against Nonparty Preclusion

As the Supreme Court holds:

 

"A person who was not a party to a suit generally has not had a 'full and fair opportunity to litigate' the claims and issues settled in that suit. The application of claim and issue preclusion to nonparties thus runs up against the 'deep-rooted' historic tradition that everyone should have his own day in court." Indicating the strength of that tradition, we have often repeated the general rule that "one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process."

 

Taylor v. Sturgell, 553 U.S. 880, 892-93 (2008), quoting Richards v. Jefferson County, 517 U.S. 793, 798 (1996) (internal quotation marks omitted), and Hansberry v. Lee, 311 U.S. 32, 40 (1940).

 

There are exceptions (for class actions, agreements to be bound, alter ego relationships and the like) but the exceptions only prove the power of the fundamental rule.  Litigants and judges can be so persuaded by a decision that they forget the importance of this rule and require a reminder.

January 05, 2016

Research Tip No. 71:  Rule Against Prior Restraint

A prior restraint is a First Amendment concept in which there is an official or governmental restriction on speech or assembly before the speech occurs, before publication. The rule against prior restraint holds that it is unconstitutional in most circumstances for a court to enjoin or restrain the future speech or assembly. FW/PBS, Inc. v. Dallas, 493 U.S. 215 (1990); Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976).  There is a heavy presumption against the validity of a prior restraint.  E.g., Forsyth County v. Nationalist Movement, 505 U.S. 123, 130 (1992).

 

Although limited to cases of prior restraint on speech or assembly, the rule against prior restraint is powerful. Any restrained litigant in such a case should assert the rule.

December 22, 2015

Research Tip No. 70:  Rule Against Retroactive Legislation

Retroactivity is not favored, and courts often apply a presumption against retroactive legislation. Thus, the Supreme Court speaks of "the axiom that 'retroactivity is not favored in the law,' and its interpretive corollary that 'congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result.'"  Landgraf v. USI Film Products, 511 U.S. 244, 264 (1994), quoting Bowen v. Georgetown University Hospital, 488 US 204, 208 (1988); Elmer E. Smead, The Rule Against Retroactive Legislation: A Basic Principle of Jurisprudence, 20 Minn. L. Rev. 775 (1936).

 

This rule may be irrelevant when the enactment occurred earlier than the events at issue. Often, however, the rule is very relevant because the events predate the enactment. In those cases, the litigant typically must use the rule or lose it. The rule is at least a doctrine for statutory construction, but the rule may rise to the level of a constitutional basis for invalidation of legislation, depending on the type of law at issue. 

December 08, 2015

Research Tip No. 69:  Rule of Completeness

The court in United States v. Holden, 557 F.3d 698, 705 (6th Cir. 2009), explained the rule of completeness as permitting a litigant "to correct a misleading impression created by the introduction of part of a writing or conversation by introducing additional parts of it necessary to put the admitted portions in proper context." Initially focused on writings, the rule has been extended to oral statements and, one would expect, to videotapes or e-mail exchanges or other communications that may cause a different impression if provided to the trier of fact piecemeal.

 

This common law rule is codified in Federal Rule of Evidence 106 and is recognized in most or all States. See Annot., Construction and Application of Uniform Rule of Evidence 106, Applying Doctrine of Completeness to Writings and Recorded Statements. 27 A.L.R.6th 183.

November 24, 2015

Research Tip No. 68:  Don't Forget Your Ideas

One of the easy mistakes is to have an idea so clear that it couldn't be forgotten and then to forget it. This mistake is easily made when researching one aspect of a project because ideas for the rest of the project are unavoidably percolating in the mind. 

 

A solution is to keep a final page in the computer file for these ideas and any others.  When an idea looms up, scroll to the end and make a note of it. This brief activity barely interrupts the work at hand but ensures that the idea is not lost.

 

Use your notes at the end of the document, separated from the "real" document by a section- or page-break, for other points as well. Include a list of exhibits as you identify them. Remind your secretary to mail a copy to the client. Have an understanding with your secretary that this final notes page will be deleted as the document is made final.

 

As you near completion, scan through the points at the end to identify any yet to be addressed. Delete points that are no longer relevant. Add any further directions for the document to be final, such as the location of certain exhibits.

November 10, 2015

Research Tip No. 67:  What Would It Look Like?

Get an idea early in a research project about the expected look and content of your finished product. Is it a brief, a proposed order, a letter, a contract, or something else? The information may be obvious in the assignment, but sometimes it is not.

 

For briefs and proposed orders, follow the caption and format of the existing documents in the file unless there is a reason to vary. You may want the full caption, for example, for a proposed order, even if the short caption is fine for a brief.

 

If you are to prepare a contract, ask the assigning attorney for a sample of that sort of contract if one is available. Search the firm's database for samples if that is possible. Search the Internet for samples. A great many are available, highly variable in quality, many written for parties in other states. Many are available with an Internet search for "sample contract."  For example:

 

 

Any contract not drafted with the law of a specific state in mind is inherently dangerous. Nevertheless, much can be learned from seeing many samples and observing that most have or lack a given provision or use a particular wording.

October 27, 2015

Research Tip No. 66:  If at First You Don't Succeed

Even skilled researchers strike out sometimes, and no one should be disheartened by an initial failure. Stop to reread the assignment and ensure there is no misunderstanding. Then think about it in detail:

 

  • Should there be law on this subject? Why might there be no law in the places first searched? Maybe the concept or statute is too new; maybe it is preempted; maybe disputes are resolved in an administrative forum; maybe it's too expensive to litigate so parties settle.
     

  • Where else should I search? Think of synonyms for the critical terms ("right of way" instead of "easement" may open the door to many authorities). Use the questions above to trigger places to look.
     

  • What does the assigning attorney suggest? Sometimes the assigning attorney will admit it was a tough question, but where that attorney would start may be valuable.
     

  • What does the law librarian say? Law librarians are asked many strange and difficult questions and often have answers or, at least, good ideas where to look.
     

  • Broadly speaking, what category of law is relevant? Check the topic listings in West's Digest to find the most relevant and scan the outline for these topics to locate annotations to read.
     

  • Is there a treatise for the general category of law? Browse through its table of contents to locate more reading.

 

Don't despair. Frankly, it's supposed to be hard or it would not justify your salary.  Bring a different point of view to work, and the challenge of the assignment can be fun.

October 13, 2015

Research Tip No. 65:  Rule of Independent Review

There is a constitutionally based rule of independent appellate review of the record that applies in First Amendment speech or freedom-of-expression cases, assigning to judges "a constitutional responsibility that cannot be delegated to the trier of fact, whether the factfinding function be performed in the particular case by a jury or by a trial judge." Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 501 (1984).  Independent review is not de novo review, but it does significantly exceed the normal appellate review.

 

Many states exercise independent review on appeal in specific circumstances. When applicable, independent review enhances the appellate review and increases the possibility of reversal. Some courts may exercise independent review without argument in favor of the rule; others may not.

September 29, 2015

Research Tip No. 64:  Rule of Constitutional Avoidance

As a general proposition, courts will not reach "questions of constitutionality . . . unless such adjudication is unavoidable.'" Scott v. Harris, 550 U.S. 372, 388 (2007) (Breyer, J., concurring), quoting Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 105 (1944)).  As Justice Brandeis observed: "The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of." Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring). 

 

This rule of constitutional avoidance typically has significant benefits in ordering the decisions and reducing adjudication of constitutional issues. In a variety of circumstances, many of which are detailed in Pearson v. Callahan, 555 U.S. 223 (2009), the Supreme Court has authorized deviation from the normal rule when doing so furthers judicial economy or achieves another significant purpose.

 

In some cases, the order in which issues are considered may affect the outcome, due to substantive legal issues and due to the impact of the issues addressed initially on the later issues. First impressions can have lasting effects. To the extent one can use the rule of constitutional avoidance and its exceptions to affect the ordering of the issues, a litigant can affect the court's first impressions.

September 15, 2015

Research Tip No. 63:  Rule of Reason

Antitrust law and the rule of reason go hand in hand. As a general rule, whether particular concerted action violates section 1 of the Sherman Act is determined by a case-by-case application of the rule of reason, under which "the factfinder weighs all of the circumstances of a case in deciding whether a restrictive practice should be prohibited as imposing an unreasonable restraint on competition." Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 49 (1977); accord, Business Electronics Corp. v. Sharp Electronics Corp., 485 U.S. 717, 723 (1988). The rule of reason was explained in Chicago Board of Trade v. United States, 246 U.S. 231, 238 (1918), followed in Arizona v. Maricopa County Medical Society, 457 US 332, 343 n.6 (1982):

 

The true test of legality is whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition. To determine that question the court must ordinarily consider the facts peculiar to the business to which the restraint is applied; its condition before and after the restraint was imposed; the nature of the restraint and its effect, actual or probable. The history of the restraint, the evil believed to exist, the reason for adopting the particular remedy, the purpose or end sought to be attained, are all relevant facts. This is not because a good intention will save an otherwise objectionable regulation or the reverse; but because knowledge of intent may help the court to interpret facts and to predict consequences.

 

Whether the court applies the rule of reason or assesses whether the challenged activity is a per se violation can make the difference in winning or losing. Knowing the two tests and evaluating the facts against the tests may decide whether to file suit or to settle.

Please reload

September 01, 2015

Research Tip No. 62: Rule of Exclusion

The Supreme Court has adopted a test or method of proof, sometimes called the "rule of exclusion," to make a prima facie case of discriminatory purpose and equal protection violation in the grand jury selection procedure resulting in substantial underrepresentation of the defendant's race or of another identifiable group to which the defendant belongs. Castaneda v. Partida, 430 U.S. 482, 494-95 (1977). The defendant must first establish that the group as a recognizable, distinct class, singled out for different treatment under the laws, written or applied. Next, the defendant must prove the degree of underrepresentation by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors, over a significant period of time. A selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing. Once a defendant has made this prima facie case of discriminatory purpose, the burden shifts to the state to rebut that case.

August 18, 2015

Research Tip No. 61:  Rule of Comity

The federal and state courts recognize a rule of comity that applies in various circumstances in which the branches of government might have friction. Comity is a matter neither of absolute obligation nor of mere courtesy and good will, Gannon v. Payne, 706 S.W.2d 304, 306 (1986), but it may support abstention and other elections not to exercise jurisdiction or to grant injunctive relief for or against the exercise of jurisdiction. E.g., Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 10-11 (1987). In the context of habeas corpus, for example, O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999), explains that comity

 

dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief. [Citations omitted.] This rule of comity reduces friction between the state and federal court systems by avoiding the "unseemliness" of a federal district court's overturning a state court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance.


Comity requires courts of coordinate jurisdiction operating under the same system to avoid interference with the process of each other. Kline v. Burke Construction Co., 260 U.S. 226, 229 (1922). Comity exists between the civilian courts and the military system. See Parisi v. Davidson, 405 U.S. 34, 37 (1972). There may be comity between the legislative branch and the courts. First National City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 762-63 (1972); Commonwealth v. Reneer, 734 S.W.2d 794, 797 (Ky. 1987) (subsequent history omitted).


Considerations of comity may affect the exercise of jurisdiction in international litigation. See Verlinden BV v. Central Bank of Nigeria, 461 U.S. 480, 486 (1983).

August 04, 2015

Research Tip No. 60:  Rule of Lenity

One of the best recognized rules is the rule of lenity, under which ambiguous criminal laws must be interpreted in favor of the defendants subjected to them. United States v. Santos, 553 U.S. 507, 514 (2008) (superseded by statute on other grounds), following United States v. Gradwell, 243 U.S. 476, 485 (1917); McBoyle v. United States, 283 U.S. 25, 27 (1931); United States v. Bass, 404 U.S. 336, 347-49 (1971). As the Supreme Court explained:

 

This venerable rule not only vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed. It also places the weight of inertia upon the party that can best induce Congress to speak more clearly and keeps courts from making criminal law in Congress's stead.

 

United States v. Santos, 553 U.S. 507, 514 (2008).

 

The rule of lenity is not the starting place for analysis but effectively the end. The rule " 'applies only if, "after seizing everything from which aid can be derived," . . . we can make "no more than a guess as to what Congress intended."'" United States v. Wells, 519 U.S. 482, 499 (1997) (multiple citations omitted). See also Annot., Supreme Court's Views as to The "Rule of Lenity" in the Construction of Criminal Statutes, 62 L.Ed.2d 827 (2012).

 

 

The rule of lenity applies in a variety of state courts. E.g., People v. Powell, 217 Ill.2d 123, 142, 839 N.E.2d 1008, 1018 (2005).

July 21, 2015

Research Tip No. 59:  "Rules"

Aside from formally adopted rules such as the Federal Rules of Civil Procedure and similar state rules, there are numerous judicially adopted rules that may affect the outcome of litigation if argued appropriately and persuasively.

 

These rules flow in part from the trial courts' inherent authority to regulate technical details and policies intrinsic to the judicial process and the appellate courts' supervisory power to permit the promulgation of rules governing the management of litigation. Thomas v. Arn, 474 U.S. 140, 146-47 & n.5 (1985). The rules are often uncodified presumptions that assist courts in managing circumstances in which direct proof, for one reason or another, is rendered difficult or time consuming. Presumptions arise out of considerations of fairness, public policy, common sense, and probability, as well as judicial economy, and are also useful devices for allocating the burdens of proof between parties. Basic Inc. v. Levinson, 485 U.S. 224, 245-47 (1988).

 

The next several Research Tips will identify and explain some of these uncodified rules.

July 07, 2015

Research Tip No. 58:  Presumptions

Scan through the presumptions and check the annotations to any presumptions that may be relevant. Most states have some presumptions codified, often in an evidence code, while other presumptions will appear in case law. The Evidence section of the West's Digest collects presumptions and relevant cases. Here are examples of presumptions that may advance an argument:

 

  • Against retroactive legislation (e.g., Landgraf v. USI Film Products, 511 U.S. 244, 279 (1994));

  • Against prior restraints (New York Times Co. v. United States, 403 U.S. 713, 714 (1971));

  • In favor of the lodestar calculation (Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552 (2010));

  • In favor of arbitrability (Granite Rock Co. v. International Brotherhood of Teamsters, 561 U.S. 287, 301 (2010));

  • In favor of corporate directors' faithfulness to their fiduciary duties (Beam ex rel. M. Stewart Living v. Stewart, 845 A.2d 1040, 1048 (Del. 2004));

  • In favor of paternity (In re Jessica, 32 Cal.4th 588, 603 (2004));

  • "The facts recited in a written instrument are conclusively presumed to be true as between the parties thereto, or their successors in interest; but this rule does not apply to the recital of a consideration." Cal. Evid. Code §622.

 

Depending on the jurisdiction, there are dozens to hundreds of presumptions. Take advantage of them when they are beneficial.

June 23, 2015

Research Tip No. 57:  Titles, Captions, and Headings

Almost all statutes have a caption or heading for the full statute and often subordinate captions or headings for the various sections. Can one rely on these captions to shed meaning on the text of the law? The answer is generally not, but occasionally yes. Here are at least some of the factors:

 

  • How was the caption created? Some captions are enacted into law when the legislature enacts the statute. State v. Lundell, 7 Wash. App. 779, 781-82, 503 P.2d 774, 775-76 (1972) ("If a statute is ambiguous, section headings and marginal notes which are enacted as a part of the act may be used to assist in determining legislative intent."). Others are written by a code compiler, editor, or similar individual after enactment. Compare Insurance Comm'r v. Equitable Life Assurance Society, 339 Md. 596, 627 n.13, 664 A.2d 862, 878 n.13 (1995), with State v. Lancaster, 332 Md. 385, 400 n.11, 631 A.2d 453, 461 n.11 (1993).

 

  • Are there statutory provisions limiting the use of the captions or no provisions? City of Camden v. Brassell, 326 S.C. 556, 560, 486 S.E.2d 492 (App. 1997) (Code provides: "The catch line heading or caption which immediately follows the section number of any section of the Code of Laws must not be deemed to be part of the section and must not be used to construe the section more broadly or narrowly than the text of the section would indicate. The catch line or caption is not part of the law and is merely inserted for purposes of convenience to the person using the Code.").

 

  • Is there history in the jurisdiction for referring to captions for an indication of legislative intent? United States v. Tedder, 403 F.3d 836, 844 (7th Cir.), cert. denied, 546 U.S. 1075 (2005) (statutory "codes, headings, and captions may help disambiguate adopted texts, but they are not themselves rules of law"); U.S. Parking Systems v. City of Phoenix, 160 Ariz. 210, 211-12, 772 P.2d 33, 34-35 (App. 1989) (title headings in statutes are not part of the law, A.R.S. § 1-212, but we can nevertheless refer to titles and captions for indications of legislative intent), citing State v. Superior Court, 128 Ariz. 535, 627 P.2d 686 (1981).

June 09, 2015

Research Tip No. 56:  Do You Mean What I Mean?

We often learn to skip over unknown words and glean their meaning from context.  This approach is normally adequate for comprehension when reading a novel or newspaper. A strange word in a contract or an opponent's brief, however, cannot be ignored with the same impunity. If you don't know the word or are uncertain of its meaning, then you cannot skip over it safely. Its meaning may be the key to the contract obligations or the meaning of the brief.

May 26, 2015

Research Tip No. 55:  SSRN Social Science Research Network

Many professors and scholars post draft articles on SSRN while continuing to revise and expand them. If your issue is currently active so there may be articles in progress, search to find out what is available. You may not want to cite the article itself, given that it may be changed, but it may cite other helpful materials. http://papers.ssrn.com/sol3/DisplayAbstractSearch.cfm. The author may be a helpful source or an expert as well.

May 12, 2015

Research Tip No. 54:  A.L.R.

American Law Reports (A.L.R.), now published by Thomson/West, is the most comprehensive set of annotated law reports. There are now seven series: A.L.R., A.L.R.2d, A.L.R.3d, A.L.R.4th, A.L.R.5th, A.L.R.6th, and A.L.R. Federal and A.L.R. Federal 2d.


A.L.R. provides research essays that analyze specific narrow legal issues. The annotations analyze and describe cases from every U.S. jurisdiction that have taken a position on the topic covered. The annotations provide references to statutes, cases, digests, treatises, law reviews, and legal encyclopedias.


A.L.R. annotations are regularly updated as new cases or statutes appear. Thus, the annotations are more valuable than law review articles that are never updated in the normal course.


After using A.L.R. for a time, it becomes steadily easier to identify the types of legal issues that will appear as annotations. Locate annotations of interest in several ways.  First, never ignore an annotation cited by the court in a relevant case. Second, each annotation cross-references other annotations that are relevant to the subject. Third, there are print Index volumes. These volumes may be useful, but they are not complete. There are often cross-references in one annotation that are mysteriously omitted from the Index.

April 08, 2015

Research Tip No. 53:  Restatements

Restatements of the Law written by the American Law Institute are secondary sources addressing common law subjects. See http://www.ali.org/index.cfm?fuseaction=about.overview. Restatements are drafted by legal scholars, judges, and professors. They are typically very detailed and analytical, so they are more valuable for in-depth study than for an overview of a subject. Many annotations in separate volumes provide case law from all jurisdictions. Restatement sections on point may be cited in judicial opinions or adopted as the law of the specific state.

 

Restatements began as single volume works and expanded into second, third, and sometimes fourth editions, growing steadily. Examples include:

 

  • Agency

  • Conflict of Laws

  • Contracts

  • Employment Law

  • Foreign Relations Law of the United States

  • International Commercial Arbitration

  • Judgments

  • Law Governing Lawyers

  • Liability Insurance

  • Nonprofit Organizations

  • Property (Landlord & Tenant)

  • Property (Mortgages)

  • Property (Servitudes) 

  • Property (Wills and Other Donative Transfers)

  • Restitution and Unjust Enrichment

  • Security

  • Suretyship and Guaranty

  • The Law of American Indians

  • Torts

  • Torts: Apportionment of Liability

  • Torts: Liability for Economic Harm

  • Torts: Liability for Physical and Emotional Harm

  • Torts: Products Liability

  • Trusts

  • Unfair Competition

 

When a state has adopted a Restatement provision as its law, many further issues arise: Which Restatement edition was adopted? If an earlier one, would the state stick with that or move to the new one? Are there decisions in other states that are relevant to the case at hand? Have developments occurred (newer court decisions, new statutes) that might alter the selection of the Restatement?

April 14, 2015

Research Tip No. 52:  Smaller Steps

A big research project can be daunting to any attorney, but it can be overwhelming for an inexperienced one. Don't hope that the flu will spare you this task. Break the work into logical units that are individually manageable. Sometimes the news reporter's questions — who, what, where, when, how, and why — can guide you.

 

  • Who is involved in the deal? Who are the parties? Parties to transactions and top lawsuits present questions of capacity, standing, assignability, personal jurisdiction, venue, restrictions on foreign activity, and so on.

  • What is the deal or the lawsuit? Sale of shares or land, suit for injunction or damages; whatever it is, there are plenty of what questions to consider.

  • Where?  In the U.S., what state and county? Are there cross-jurisdictional or choice of law concerns, or unusual state laws? In a foreign country, cross-jurisdictional and choice-of-law concerns become even more significant. For litigation, what venue is best? Federal or state court?

  • When? Are there timing issues presented by the jurisdiction(s) involved? Do tax years require speed or delay to meet a specific tax year? 

  • How? What is the structure of the deal? Must new entities be created? If so, what should they be? Will there be shares or participations or the like? For litigation, use a complaint or a petition for writ of mandate? Is there a procedure that provides a more favorable burden of proof?

  • Why? What is the reason for the transaction or lawsuit? The reason may illuminate answers to the other questions or raise additional issues or concerns. 

 

This listing is simplistic, but it illustrates the kinds of ways that research projects can be broken into manageable pieces.

March 31, 2015

Research Tip No. 51:  Last Step

No matter what steps a research task requires, there are several last steps that are essential to the quality of any research.

 

  • Cite check all cases by the most current method available to you. Do not rely on Google Scholar as it is incomplete and may miss a reconsideration or a pending appeal. Westlaw and Lexis are superior although not perfect. If both are available, use both for at least the most important cases. One option is to use one during the active research phase and the other in the final check. If the case is recent, call the court or check online at the court website.

  • Check all statutes to be sure there have been no amendments. Lexis and Westlaw may note if legislation is pending. In many states, you can check the state legislature's website using http://www.lawsource.com/also/.

  • Check the cited regulations, if any, in case any changes have occurred.

  • Read the document in its entirety, in one sitting if possible.  It's easy to have a misunderstanding at the beginning about the parties or the relief sought or some other aspect of the document.  You may learn part way through the work that a spouse must be added or that a setoff is sought.  At the time, you may not have corrected the document, planning to do it later and then forgetting.

March 17, 2015

Research Tip No. 50:  Where to Start?

When you have a big research task involving multiple research steps, what research should be done first, and second, and so on, and how does one decide? Factors that bear on the decision include:

 

  • Which research tasks will provide an overall understanding of the subject (especially important if it is a new subject for you)?

  • What research (if any) may lead to an answer that ends the inquiry? If there is any possibility that the research issue does not apply in state court or is inapplicable to civil cases, the sooner the rule is discovered, the better.

  • How quickly can specific research be completed? The task may be less daunting if you can reduce the number of steps.

  • How directly will that specific research answer the question? If you think there may be a clear answer, don't start by spending time on analogies.

  • What other research will have to be completed, if any, no matter what?

  • Can research be "batched" in any logical way to be more efficient?

March 03, 2015

Research Tip No. 49:  Hierarchy of Authority

Depending on the nature of the issue and the court in which the case is pending, the hierarchy of authority governing the outcome will change. The U.S. Supreme Court is supreme, of course, on the interpretation of the U.S. Constitution and federal law. The state supreme court, whatever its official name, governs subordinate courts within the state. Decisions of other states' courts have no direct precedential value. Federal courts look to higher federal courts on issues of federal law and procedure, but the federal courts must apply the law in accordance with the controlling decision of the highest state court when state law provides the rule of decision.


What the hierarchy means for efficient research is that an attorney cannot simply word search for cases that say the right thing for the specific lawsuit. The right thing in a case lower on the hierarchy is trumped by a contrary ruling in a case higher in the hierarchy. Efficient research starts at the top and works its way down through the cases lower on the hierarchy.

February 17, 2015

Research Tip No. 48:  Subsequent History

Always, always include the subsequent history when citing a case. Judges have law clerks who check the cases as a matter of routine, and opposing counsel will check as well. Years may pass before an attorney can recover from the damage to reputation triggered by omission of a negative subsequent decision. For example, the court in New Energy Co. of Indiana v. CIGNA Ins. Co., 685 F. Supp. 1073, 1082 n.13 (S.D. Ind. 1988), observed: "This court notes with displeasure that CIGNA failed to cite Wilson as being overruled. Reporting subsequent case history is one of the most elementary tasks of legal writing. There is no acceptable excuse for failing to mention a subsequent, overruling opinion." In another example, Commonwealth v. Puksar, 597 Pa. 240, 951 A.2d 267, 283 (2008), the court noted: 

 

Most disconcerting about appellant's argument to this Court is that this subsequent case history was available at the time he filed his brief in this Court, yet he completely ignores it in favor of the vacated ruminations of the initial federal judge concerning a claim not then exhausted in the Pennsylvania state court system.

 

 

The decision may have been overruled on other grounds or in a manner that negates the impact and leaves the point worthy of citation. These explanations can be provided if the subsequent history is cited. If there is no explanation, then omission of the subsequent history justifiably causes very negative conclusions about the brief writer.

February 03, 2015

Research Tip No. 47: Oldies Can Still Be Goodies

An argument need not be discarded because it is supported only an old case. Plaintiffs in McGuire v. More-Gas Investments, LLC, 220 Cal.App.4th 512, 526 (3d Dist. 2013), relied on Stevens v. Los Angeles Dock & Terminal Co., 20 Cal.App.743 (2d Dist. 1912).  Defendant More-Gas objected that Stevens is " 'a 100 year old case that has never been cited by another California case.'" The McGuire court responded:

 

That fact is of no significance. While it is true Stevens has never been cited by any published appellate decision in California, that does not undercut the validity of the reasoning in the case. Indeed, the principle applied in Stevens is well known in the common law, including here in California. An appellate court in New York that cited Stevens over 70 years ago succinctly articulated that principle as follows: . . . .

 

As McGuire illustrates, age of a compelling case is not necessarily a matter of consequence. 

 

What are some ways to show why the case is compelling when it has never been cited by other courts in the same jurisdiction?

 

  • Other cases in that jurisdiction may have reached the same substantive decision without citing the case. Use the headnotes and digest to locate them most easily.

  • Courts in other states may have cited the case. Shepardizing or keyciting will produce this information, and you may want to do both as different results can occur.

  • If there is a headnote or keynote number for the point decided in the case, use the regional digests or the decennial digest to locate other decisions on the point. For more on digests, see, e.g., http://lawlibguides.byu.edu/content.php?pid=225319&sid=1961818 and http://www.law.georgetown.edu/library/research/guides/digests.cfm.

  • Is the case cited in significant treatises or in A.L.R. Annotations or elsewhere in respected legal materials? Their reliance on it bolsters its value and is independent argument for the point.

  • Is there an analogy that opens the door to other cases? This may be the only case on the point in a mining context, but the same rule may apply in agriculture.

 

Use your imagination. If you give up because the case is 100 years old, then your argument may be over. If so, the reason may be that you didn't try hard enough, not that you deserved to lose.

January 21, 2015

Research Tip No. 46:  Table of Contents

The table of contents to a set of codes or a treatise is an especially valuable tool for gaining the overview and then zeroing down to the areas of particular interest. 

 

A large set of codes may not publish the full table of contents in every volume. More often, the first volume of each code will have a complete table of contents, with the remaining volumes having only the relevant portion for each volume.

 

The full table will reveal that a particular set of sections are subparts of a specific subject matter and, thus, not applicable more generally. Visualizing the full table may reveal relationships between and among the sections that support lines of argument beneficial to a client. 

 

Explicit reference to a section in the table of contents to a contract or policy may be another item of evidence that the material was adequately revealed. E.g., I. Meyer Pincus & Associates P.C. v. Oppenheimer & Co., 936 F.2d 759, 763 (2d Cir. 1991); Brinson v. Martin, 220 Ga.App. 638, 639-40, 469 S.E.2d 537, 539 (1996). Likewise, omission of a subject from the table of contents may be further evidence of concealment. E.g., Jacksonv. Jackson, 2 Conn.App. 179, 191-92, 478 A.2d 1026, 1032 (1984), disapproved on other grounds in Billington v. Billington, 220 Conn. 212, 595 A.2d 1377 (1991).

January 06, 2015

Research Tip No. 45:  Indexes to Legal Books

One would expect that the index would be a valuable way to locate and access information in legal books. Unfortunately, it is often not so. There are two common methods for preparation of the index to a legal treatise.

 

Indexes are prepared primarily by free-lance individuals whose assignment is to create the index, frequently for a fixed sum set by the publisher in advance. The individual may know nothing about the substantive content of the book and, since the payment is the same no matter how much time is spent, may have little enthusiasm for learning the content. Indexes may also be prepared by the author. Since the index can't be completed until the book is done, and then must be completed to satisfy a deadline, the author typically comes to the task already worn out.

 

Updating of indexes is often spotty at best, so an index that starts out poor becomes less and less useful over time. For one example, a specific A.L.R. annotation will include "related annotations," some of which should appear in the index on the subject matter but do not appear there. In another example, I've written a chapter on Immunity in my treatise on California Affirmative Defenses. I wanted to include all (realistically, at least most) of the immunities created by California statutes. There are three independent indexes of the California statutes, and I thought they would cumulatively pick up most of the immunities. Instead, I kept running across more immunities and finally paged through the entire California codes. The three indexes together had only about one-third of the immunities.

 

 

The lesson is not that indexes are useless. They have much value and should be used. The lesson is that no single research approach is likely to yield a complete and accurate result.

December 23, 2014

Research Tip No. 44:  Even Experienced Attorneys Do Research

The Seventh Circuit reviewed a case in which the trial judge made large across-the-board cuts in legal research time:

 

He cut legal research time by 40 percent on the ground that experienced securities counsel don't need to do much research. That clearly is incorrect. No matter how experienced a lawyer is, he has to conduct (or have conducted for him) research to deal with changes in the law, to address new issues, and to refresh his recollection. No one carries the whole of federal securities law — not only the many detailed statutes and regulations but the thousands of decided cases — around in his head, and a lawyer who tries to respond to a motion or brief without conducting fresh research is courting sanctions or a malpractice suit. The judge gave no examples of excessive time spent on legal research — he just had a gestalt reaction that there was too much. That isn't good enough.

 

In re Continental Illinois Securities Litigation, 962 F.2d 566, 570 (7th Cir. 1992). Never be embarrassed to do research. Statutes are amended regularly; who wants to be correct about last year's version of the law. New cases overrule, disapprove, or subtly alter earlier cases. Legal research at any moment dips a toe into the flowing stream of the law; the dip next year may find changes in the law that are good or bad for the client. Either way, knowledge of the changes is essential.

December 09, 2014

Research Tip No. 43:  A New U.S. Code Law

New Title 52 became effective September 2, 2014, collecting sections on voting and elections that used to appear in Titles 2 and 42. The reorganization is discussed at length at http://uscode.house.gov/editorialreclassification/t52/index.html by the Office of Law Revision Counsel.

November 25, 2014

Research Tip No. 42:  Enrolled-Bill Doctrine

With variations from state to state, the enrolled-bill doctrine holds that, once a bill passes a legislative body and is signed into law, courts assume that all rules of procedure were properly followed in enactment of the bill.  

 

The Supreme Court first stated the rule in Marshall Field & Co. v. Clark, 143 U.S. 649, 672-73 (1892). The Court held that the judiciary must treat the attestations of "the two houses, through their presiding officers" as "conclusive evidence that [a bill] was passed by Congress." The attested "enrolled bill" establishes that Congress passed the text included therein "according to the forms of the Constitution," and it "should be deemed complete and unimpeachable." Id.

November 11, 2014

Research Tip No. 41: Uncodified Law

It's easy to assume that the code book in your hand contains all the laws. Not so. Legislatures enact many laws that are not codified at all or are codified only in part. Common examples include:

 

  • Preambles and recitals. See generally Arkansas State Police Comm'n v. Davidson, 253 Ark. 1090, 490 S.W.2d 788, 789-90 (1973); Ky.Op.Atty.Gen. 82-566 (Nov. 5, 1982); Wesley Chapel Bluemount Ass'n v. Baltimore County, 347 Md. 125, 699 A.2d 434, 435 (1997) (statement of "legislative policy undergirds and pervades the Act and necessarily sets the general direction for its interpretation"); Newspapers of New Hampshire, Inc. v. City of Concord, 13 Media L.Rep. 1685 (N.H.Super. 1986) ("Reasonableness on the part of all parties in complying with the preamble to the statute is expected."); State ex rel. Mason v. State Employment Relations Board, 133 OhioApp.3d 213, 217-18, 727 N.E.2d 181, 184 (1999) ("The Ohio legislature specified its intent and purpose in enacting the current Sunshine Law in the preamble."); A Sutherland, Statutes and Statutory Construction §§ 20.3-20.5 (N. Singer 7th ed. 2010); 2B Sutherland, Statutes and Statutory Construction §§ 56.1 et seq. (N. Singer & J.D.S. Singer 7th ed. 2008); Winckel, The Contextual Role of a Preamble in Statutory Interpretation, 23 Melb.U.L.Rev. 184 (1999); Note, The Legal Effect of Preambles-Statutes, 41 Cornell L.Q. 134 (1955).

  • Provisions that have only local or regional application (e.g., multiple federal laws governing the Mississippi River, Central Valley Water Project in California).

  • Provisions that may apply for a limited time. E.g., Maynard v. Eaton Corp., 119 Ohio St. 3d 443, 445, 895 N.E.2d 145, 147 (2008): "As defined by the Ohio Legislative Service Commission, uncodified law is '[l]aw of a special nature that has a limited duration or operation and is not assigned a permanent Ohio Revised Code section number.' A Guidebook for Ohio Legislators (10th Ed.2007-2008) 145. '[U]ncodified law is part of the law of Ohio and is filed in the office of the Secretary of State. However, because it is not a law of a general and permanent nature, it does not appear in the statutes in codified form.' Id. at 68."

  • Provisions that may apply to a limited number of circumstances. E.g., Roe v. Doe, 193 Md.App. 558, 998 A.2d 383 (2010), aff'd, 419 Md. 687, 20 A.3d 787 (2011) (limited retroactive application of statute).

  • Other uncodified provisions. E.g., Carter v. Department of Veterans Affairs, 38 Cal.4th 914, 925 (2006) ("An uncodified section is part of the statutory law. (See County of Los Angeles v. Payne (1937) 8 Cal.2d 563, 574, 66 P.2d 658 ['The codes of this state . . . have no higher sanctity than any other statute regularly passed by the [L]egislature'].").

 

Uncodified provisions may sometimes be found in notes to codified law when deemed relevant by those creating the notes. E.g., Dittman v. State of California, 191 F.3d 1020 (9th Cir. 1999), (addressing an alleged violation of section 7(a)(1) of the Privacy Act (uncodified), 5 U.S.C.A. §552a (note), Pub.L. No. 93-579, 88 Stat. 1896 et seq.). The decision to include a note rests with the publisher of the code, and you will discover that you will regularly think points are important that do not appear in the notes. 

Always keep in mind that the common law is traditionally uncodified. California has adopted the "common law of England, insofar as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State" as "the rule of decision in all the courts of this State." Cal. Civ. Code § 22.2. The business judgment rule, laches, estoppel, and numerous other doctrines that are "the law" are often not codified.

Please reload

October 28, 2014

Research Tip No. 40: Elements of a Cause of Action

It can be hard to find a clean statement of the elements of a cause of action. Cases may provide a list, but the elements are often intermingled with discussion of the facts.

 

When drafting a complaint and when a demurrer or motion to dismiss is based on the plaintiff's failure to allege one of the essential elements, often the easiest source for a statement of the elements is the published set of jury instructions for the jurisdiction. The relevant jury instruction will set out the elements in a straightforward numbered list format that is ideal to use in support of the requirement for each independent element. Judges are comfortable with the pattern jury instructions, having used them routinely for instructing juries.

 

Pattern jury instructions in many States are followed by use notes explaining the instruction and when it is appropriately used. These notes can be a source for relevant statutes, case law, and other materials that may be helpful long before the time to prepare jury instructions.


Links to federal and state pattern jury instructions are available at http://www.lb7.uscourts.gov/reflinks.htm. A Google search for "pattern jury instructions" will produce many hits, but add your jurisdiction to be more specific. These Google results may not yield the most current version.

October 14, 2014

Research Tip No. 39: The Code in Outline Format

When facing a difficult interpretation of a statute, take a moment to step back from the specific section to see its placement in the larger body of law. For example, New York's Public Officers Code has eight articles:

 

Article 1 - (1 - 2) SHORT TITLE; DEFINITIONS
Article 2 - (3 - 19) APPOINTMENT AND QUALIFICATION OF PUBLIC   OFFICERS
Article 2-A - (20 - 28) ACTIONS ON OFFICIAL BONDS OR UNDERTAKINGS
Article 3 - (30 - 43) CREATION AND FILLING OF VACANCIES
Article 4 - (60 - 79) POWERS AND DUTIES OF PUBLIC OFFICERS
Article 5 - (80) DELIVERY OF PUBLIC BOOKS
Article 6 - (84 - 90) FREEDOM OF INFORMATION LAW
Article 6-A - (91 - 99) PERSONAL PRIVACY PROTECTION LAW
Article 7 - (100 - 111) OPEN MEETINGS LAW
Article 8 - (115 - 117) CONSTRUCTION; LAWS REPEALED; WHEN TO TAKE EFFECT

 

Construing a statute in Article 4, one might well be benefitted to know the definition of "state officer" in Article 1 and that the chapter applies only to civil officers as stated in Article 8.


Most printings of the federal and state codes provide an outline format. On line, an easy outline format is available at http://www.lawsource.com/also/ for the U.S. and all the states.

September 30, 2014

Research Tip No. 38:  Maxims of Jurisprudence

Several states have codified maxims of jurisprudence that may advance an argument in themselves and may have been cited in earlier cases that are valuable. These cases may not be located easily except as annotations to the relevant maxim. The maxims are intended to aid in the just application of the law. Derived from the Field Code, the maxims may seem stilted in their wording today, but they state rules of fundamental fairness and equity.

 

California Civil Code §§1597, 3509-48 sets out the California maxims:

 

1597.  Everything is deemed possible except that which is impossible in the nature of things.

3510.  When the reason of a rule ceases, so should the rule itself.

3511.  Where the reason is the same, the rule should be the same.

3512.  One must not change his purpose to the injury of another.

3513.  Any one may waive the advantage of a law intended solely for his benefit. But a law established for a public reason cannot be contravened by a private agreement.

3514.  One must so use his own rights as not to infringe upon the rights of another.

3515.  He who consents to an act is not wronged by it.

3516.  Acquiescence in error takes away the right of objecting to it.

3517.  No one can take advantage of his own wrong.

3518.  He who has fraudulently dispossessed himself of a thing may be treated as if he still had possession.

3519.  He who can and does not forbid that which is done on his behalf, is deemed to have bidden it.

3520.  No one should suffer by the act of another.

3521.  He who takes the benefit must bear the burden.

3522.  One who grants a thing is presumed to grant also whatever is essential to its use.

3523.  For every wrong there is a remedy.

3524.  Between those who are equally in the right, or equally in the wrong, the law does not interpose.

3525.  Between rights otherwise equal, the earliest is preferred.

3526.  No man is responsible for that which no man can control.

3527.  The law helps the vigilant, before those who sleep on their rights.

3528.  The law respects form less than substance.

3529.  That which ought to have been done is to be regarded as done, in favor of him to whom, and against him from whom, performance is due.

3530.  That which does not appear to exist is to be regarded as if it did not exist.

3531.  The law never requires impossibilities.

3532.  The law neither does nor requires idle acts.

3533.  The law disregards trifles.

3534.  Particular expressions qualify those which are general.

September 16, 2014

Research Tip No. 37:  When You Don't Have a Clue

Both new associates and seasoned attorneys can face a research task for which they have no idea where to start or what to do. In a different context, one might ask: "is it animal, vegetable, or mineral?" In this context, relevant questions include:

 

  • Is the source of law likely to be constitutional, code-based, regulatory, or common law? These categories may guide the selection of research sources to pursue but are not mutually exclusive.

  • Does federal law govern, or state law, or a combination? Combinations insert issues of preemption and incorporation of state law into federal law that typically add significantly to the complexity of the issues.

  • Is there a recognized treatise on this area of law? An overview from a high-quality treatise can aid enormously in defining and narrowing the task to something manageable. 

  • Is there a West Digest topic addressing this subject matter? Skimming the Digest outline and annotations may bring the reader rapidly up to speed on the subject.

  • Is there a person who knows this subject and do you know enough to ask for help? Advice from a person who has practiced in the subject area for years can be invaluable. If sought too soon, however, the advice may not make sense or may not make as much sense as it would if the person requesting it had more background. Moreover, frequent requests for help by someone who has made little or no independent effort may wear out the welcome. Senior attorneys are typically most willing to assist those who learn what they can on their own initially.

August 22, 2014

Research Tip No. 36:  Trust Yourself

Some research tasks come up empty. After looking in the sources that are usually successful, you just can't find any law on the point in question.

 

Sometimes, there is no law. Even in states that have lots of law-Codes, regulations, court decisions, administrative decisions — there are questions for which there simply are no answers. States with smaller populations and less litigation like Nevada and Hawaii will have no law even more often. In these "no law" situations, one can look to analogies within the state and to the law of other states. Neither is necessarily satisfactory. Analogies may be valuable or useless depending on the circumstances, the closeness of the facts, the rationale for the existing law, and its application to other circumstance. The law of other states opens the door to 49 states, some with the law you are looking for and some with very different content. Common law issues can be transferred from one state to another more readily than legislative provisions. A.L.R. annotations can be very valuable in this situation, as can the West Keynote system.

 

In other cases, the law exists but it is hiding. You may have searched the Health and Welfare Code when the law was codified to the Food and Agriculture Code. The terminology may differ from the search terms you identified. The cases may be annotated to places that you did not expect.  Use the dictionary and similar tools to identify additional search tools.  Talk to other attorneys who practice in the general area for their ideas and the words they would use. Use a source like http://www.lawsource.com/also/ to search all the Codes in a particular state or to focus the search on just a few. Search the outline at the beginning of the Digest to identify likely topics, then search the detailed outline of those topics and drill down to the annotations that seem most promising. 

 

Over time, those who do significant amounts of research develop a sixth sense for where to search and whether to give up. Research for one project necessarily enhances the researcher's knowledge for the next project as well as enabling the researcher to complete the initial project.

 

(Addendum (response) to Ann's Tip written by Ken Oettle, Senior Counsel at Sills Cummis & Gross P.C. in Newark, NJ, regarding Research Tip No. 36:  Trust Yourself)

 

Sometimes no law applies, and sometimes it is hidden, either in an unlikely code or under an unlikely heading. In either case — law or no law — you have to persevere.  When you look for a needle in a haystack, you may have to move every piece of straw.  You resist because you don't see yourself as a drudge; you don't have time; you don't want to spend a lot of time and come up empty; and you don't get paid enough. Unfortunately, you have to grind it out or have someone grind it out for you. You may get lucky and find the answer early, but more often, because the answer is hidden (assuming there is one), you don't find it until you have gone through several levels of frustration and come within a hair of giving up.
 

I use one other research source — the Internet through Google or Bing. Typically, some law firm will be touting its wares with a summary of the specific area of law; some agency will be explaining how to do business with it; or a relevant or even semi-relevant law-review article will be on-line. Leads from these sources guide me to statutes, regulations, and case law; I go back to the Internet if necessary, and then back to the books. After all this looking, if I find nothing, I at least feel comfortable, more or less, reporting without embarrassment that I found nothing on point.

September 02, 2014

Internet Research Tip No. 35:  Maps

There are many circumstances in which one may need a map of a particular location at or about a specific earlier date or series of dates. There are services such as Google Earth that provide current or relatively current maps and aerial photographs, and there are also Internet sites that collect older maps and aerial photographs.

 

  • The Library of Congress Map Collections gathers a variety of general maps and maps of cities and towns, conservation and environment, discovery and exploration, cultural landscapes, military battles and campaigns, transportation and communication, places in history, and places in the news. The maps can be searched by location, creator, subject, keyword, geographical location index, and title. http://memory.loc.gov/ammem/gmdhtml/gmdhome.html

 

A Google search for "map collections" or "aerial photography collections" will produce many options. Start with ones that are nearby or large, or include the name of the place, river, or other feature to focus your search.

 

Talk to the library or other source of the maps to identify the information needed for judicial notice of the maps that you need. An affidavit or declaration of the custodian of the maps may be required establishing the facts for judicial notice.

August 08, 2014

Research Tip No. 34:  Don't Be Shy

The convincing point can come from many sources. Don't be shy about searching out sources that are inherently valid even if unusual. For example, in a construction contract bidding dispute in which some numbers were communicated orally, a significant issue may be the manner in which the numbers were articulated. Locate some standard third and fourth grade arithmatic texts in which children are taught how to say large numbers. If the texts consistently teach students to say the numbers in the way that your client's representatives said the numbers, then you can move the court to take judicial notice of the arithmatic texts. All the judicial notice requirements must be satisfied, of course, so you'll need a grammar school librarian or math teacher to establish that these are the standard texts. Don't ask for more than the documents can prove — the texts alone do not establish the exclusive way that large numbers can be stated aloud. But take advantage of what the texts can do to advance your client's position.

July 25, 2014

Research Tip No. 33:  State or Federal Legislative History

Researching legislative history can take enormous amounts of time and may produce little of value for the client. The effort is not always a bottomless pit, but that is true often enough to call for some thought before embarking on the effort.

 

  • Is your opponent the sort who will research and argue legislative history so you will have to do it? This is rare in routine litigation.

  • Are the courts that will see briefs in this matter influenced by legislative history?

  • Do these courts like dense and difficult reading? Is it better to bring them a clean, straightforward issue instead?

  • How likely is it that the legislative history will be equivocal or helpful to the opponent?

  • How strong are the other arguments? Is there a risk that the legislative history may detract from arguments you intend to make?

  • Will the intended research open the door to expanded research and arguments by your opponent and then more effort to respond? Are you and your client likely to benefit as a result?

  • Can the client afford the research and does the client want it done?

July 11, 2014

Research Tip No. 32:  Time Required

Resist predicting how long a specific research task will require. Some tasks are relatively simple even when they appear difficult at the outset. Others balloon into ever more difficult problems. Predictions at the outset are based on the least information, especially for a younger attorney. Once uttered, the prediction may be given far too much weight, returning to haunt the attorney at the end of the task.


Some areas of law are unusually difficult to enter for the first time; examples are antitrust, bankruptcy, and workers' compensation. It can be difficult to recognize these areas, but the attorney needs to absorb a body of law before even starting to understand the question, much less the answer. Any expectation of a correct antitrust answer from a young attorney who did not study antitrust in law school is unfair without extended research time.

June 27, 2014

Research Tip No. 31:  Notice to the Attorney General

Many states require that the state attorney general be notified before a lawsuit is filed, before judgment is entered, or at some other time. Penalties for failure to comply with the notice vary, but they represent at least an inconvenience or delay and may cause the loss of a favorable judgment.

 

The requirement for notice may appear in the procedural statutes and rules relevant to litigation or in the substantive statutes relating to a specific subject.

 

  • Cases involving a charitable trust or nonprofit are particularly likely to trigger notice requirements.  E.g., Model Protection of Charitable Assets Act (July 2011), at www.uniformlaws.org/shared/docs/protection_of_charitable_assets/mpocaa_prestylefinal_jul11.pdf; Fremont-Smith, The Search for Greater Accountability of Nonprofit Organizations: Recent Legal Developments and Proposals for Change, 76 Fordham L. Rev. 609 (2007); Mayer & Wilson, Regulating Charities in the Twenty-First Century: An Institutional Choice Analysis, 85 Chi.-Kent L. Rev. 479 (2010); Right of Attorney General to Intervene in Will Contest Involving Charitable Trust, 74 A.L.R.2d 1066 (1960). See also Google or Google Scholar search for "nonprofit" "attorney general" "notice to."

  • Cashing out rights under a structured settlement may require attorney general and court involvement to prevent disadvantage to the beneficiary of the settlement. Jay M. Zitter, Construction and Application of State Structured Settlement Protection Acts, 27 A.L.R.6th 323 (2007).

 

The requirements may also apply in federal cases:

 

  • The U.S. attorney general must be notified of any constitutional challenge to federal laws or regulations if no federal party is a defendant.  28 U.S.C. §2403; Fed. R. Civ. P. 5.1(a)(1)(A); see Ann K. Wooster, Construction and Application of 28 U.S.C.A. §2403 (and Similar Predecessor Provisions), Concerning Intervention by United States or by State in Certain Federal Court Cases Involving Constitutionality of Statutes, 147 A.L.R.Fed. 613 (1998).

  • The state attorney general must be notified of any constitutional challenge to federal laws or regulations if no federal party is a defendant.  Fed. R. Civ. P. 5.1(a)(1)(B).

  • The federal Class Action Fairness Act requires parties who propose federal class action settlements to give notice of the proposed settlement to the U.S. attorney general or appropriate federal official and to "appropriate state officials." If the defendant is not licensed by a state agency, the appropriate state official is the state attorney general.  28 U.S.C. §1715(a)(2); see Gary v. Spivey, Construction and Application of Class Action Fairness Act of 2005, 18 A.L.R.Fed.2d 223 (2007).

June 13, 2014

Research Tip No. 30:  Issues to Discard

We learned in law school and studying for the bar to identify all the relevant issues presented in a given situation. Having identified, say, fourteen issues, attorneys are reluctant to fail to assert all of them. Who can tell which one the judge might find persuasive? Perhaps the answer is to brief all the issues and let the judge decide which ones are best. No, this is not the answer.

 

Uniformly, judges do not appreciate the shotgun, spaghetti-on-the wall approach to briefing, and the judge is less likely to give full attention to all the issues once the character of the briefing is clear. The attorney has to cut the impossible, unlikely, or painfully convoluted issues from the complaint, answer, or brief before it is filed with the court. 

 

Research is the principal tool attorneys use to determine which of the fourteen issues to discard. A few issues may be factually implausible so that common sense compels letting them fall by the wayside unless significant other information is available to improve their prospects. Research may reveal which issues have elements that cannot be established or counterarguments that cannot be defeated. Research will likewise identify the issues that can be successful, based on the information available, and can focus attention on proof that needs to be obtained.


Deciding when to drop and what to drop can be as important as deciding which issues to pursue. Weak and flawed arguments detract so strongly from good arguments that it is essential to separate them and discard the ones that will not win.  These decisions are the ones that divide the best attorneys from all the rest.

May 30, 2014

Research Tip No. 29:  Where Would the Assigning Attorney Start?

One question to ask on receiving an assignment is which source the senior attorney would start with if undertaking the research rather than assigning it to you.  Occasionally, the answer will be a surprise, and you'll want to ask why the attorney would start with that source. These questions offer a real learning opportunity, so don't pass them up.

 

A source may be peer reviewed. This fact alone may justify starting with that source when the peer review is conducted wisely. For example, escrow and title company operations are conducted very differently in northern versus southern California. A highly experienced attorney working in northern California and Nevada could easily write a treatise on California real estate transactions knowing nothing of the differences in southern California. Absent peer review, such a treatise could be published and purport to aid attorneys practicing in southern California.

 

Similarly, many courts have published local rules and unpublished "local local rules," or unwritten rules that a single judge or a few judges follow. A practice treatise should warn of the possibility of these judicial practices and ways to learn of them before an attorney has committed significant work unaware. Peer review from the various geographic areas and from rural and urban areas greatly enhances the available information. 

 

The majority of legal treatises are not peer reviewed, and many see no substantive editorial work from the publisher. These treatises may be correct on the law because the author worked hard to ensure accuracy, but the level of accuracy and quality must be determined individually.

 

A source may be favored, for example, because it is comprehensive in the specific subject matter, because it has well drafted forms for use in the specific subject area, because it coincidentally assisted the senior attorney on an earlier occasion, or because it is the only treatise on the relevant subject matter in the office. Each of these and any other reasons tell you something about the treatises and something about the attorney.

May 16, 2014

Research Tip No. 28:  Pocket Parts and Their Equivalents

Codes, digests, many treatises, and other legal books are routinely updated by pocket parts, inserted in each volume once a year. Depending on the publisher, pocket parts issued in the end of one year may have the next year's date. To make sure that the pocket part you are using is up to date, check the pocket-part dates in a few volumes randomly and compare them with the dates of the pocket parts you are using. 

 

The Ninth Circuit described "failing to check the pocket part" as "a young lawyer's mistake" in Lankford v. Arave, 468 F.3d 578, 585 (9th Cir. 2006), cert. denied, 552 U.S. 943 (2007). Numerous cases describe what counsel could have found in the pocket parts had they been checked.

 

When the pocket parts are inserted in the volumes, it often happens that one or more volumes are missing from the shelf so their pocket parts cannot be inserted. These orphan pocket parts may languish for a month or longer before they are inserted unless you ask for them. 

 

Many of the books updated by pocket parts also have interim updates during the year in pamphlet form. These pamphlets are usually shelved at the end of the set.  They will contain updates for the last quarter or half of the year.

 

A similar concern to that presented by the missing pocket part arises with treatises that are updated by replacing certain pages. All replacement pages for a specific volume may be in the librarian's office, awaiting a free moment for insertion in the volume that was missing on an earlier day. These books typically have a sheet in the first volume listing all pages affected by the update that can be checked as needed.

 

If the point is significant, you may elect to run a few computer searches that will catch very recent cases. Any printed source is almost certain to be a minimum of eight weeks out of date.

May 02, 2014

Research Tip No. 27:  How Much Research Is Enough?

Occasionally, research reveals an answer that is clearly, unquestionably complete and correct. A recent U.S. Supreme Court decision may state the law with respect to facts that are effectively identical to the facts you face. It can happen, but not often.


Far more often, initial research efforts reveal a mixed bag of partial answers and ideas, some leads on possible additional things to look at, and a lot of frustration.  In this situation, here are some points to consider in deciding whether you have done enough research:

 

  • How central is the issue to where you need to get? Sometimes additional thinking reveals that the point is not important after all. Can you get where the client needs to go no matter what the answer is?

  • How much information is available? There can be remarkably little information on some points. You may have seen what there is to see if the cases in the annotations are the same as appear when you cite check cases or read secondary materials. At this point, you may have done all the research possible or only all the research on the way you are thinking about the issue. Try brainstorming with a colleague or supervisor to identify other ways to approach the issue or analogies that might help.

  • If there are hundreds or thousands of cases, you need to use triage. Use the Digest to zero in on the best cases. Start with the most recent cases decided by the highest court with jurisdiction over the subject matter. Drop down to next highest court or to less recent cases as necessary.

  • If you stop before you have a definite answer, or because you believe there is no definitive answer, explain the level of uncertainty to the client. Give the best advice possible given the uncertainty, but make sure the client understands that the advice is based on your inconclusive research to date. If the client decides no more research is required, document that fact in some manner.

  • If you are writing a brief and your client has placed a cap on how many hours can be spent, remember that the judge will not know the limitation under which you operated. If you cannot complete the work in the allotted time, consider whether to ask the client for more time or to finish on your own time.  Your relationship with this client may be short term, but you may appear before this judge repeatedly for many years.