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And suddenly, legal reseach was made simple! Excellent for anyone searching for information in a real or virtual law library (including paralegals, law students, legal assistants and journalists), Legal Research outlines a systematic method to find answers and get results. In plain, readable English, Attorneys Elias and Levinkind explain, with plenty of examples and instructions, how to:
  • read and understand statues, regulations and cases
  • evaluate cases for their value as precedent
  • use all the basic tools of legal research
  • practice what you've learned with "hands-on, feet-in" library exercises, as well as hypothetical research problems and solutions This easy-to-use and understand book, now in its 14th edition, has been adopted as a text in many law schools and paralegal programs.
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    Year:
    2007
    Edition:
    14
    Publisher:
    NOLO
    Language:
    english
    Pages:
    345
    ISBN 10:
    1413306934
    ISBN 13:
    9781413306934
    File:
    PDF, 7.13 MB
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    please note
    We believe accurate, plain-English legal information should help
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    Fourteenth Edition
    
    Legal
    Research
    How to Find &
    Understand the Law
    by Attorneys Stephen Elias and Susan Levinkind
    Edited by Richard Stim
    
    Fourteenth Edition
    
    july 2007
    
    Editor
    
    RICHARD STIM
    
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    Dedications
    To Catherine and Megan	To Elana
    Whose special gifts
    my heart’s companion
    Ease these troubled times
    And to Andrea, Scott, Sammy and Adam
    And illuminate my future
    for immeasurable pleasures
    –– SE	
    –– SL
    
    Acknowledgments
    Over the years many wonderful people have contributed to this book in many different ways,
    including insights into legal research resources and techniques, text editing, error checking
    and book and cover design. We specifically wish to acknowledge the contributions of Nolo
    publisher Jake Warner, Mary Randolph, Janet Portman, Jackie Clark Mancuso, Eddie Warner,
    Stephanie Harolde, Nancy Erb, the late Diana Vincent-Daviss, Shirley Hart-David, Robert Berring, Terri Hearsh, Toni Ihara, Raquel Baker, James Evans, Ella Hirst, Nolen Barrett, Ling Yu
    and our legal research students.
    
    Table of Contents
    Your Legal Companion
    
    1
    
    Quick Legal Research Tips
    
    2
    
    An Overview of Legal Research
    Patience and Perspective........................................................................................... 8
    How to Find (and Feel at Home in) a Law Library..................................................... 8
    Legal Research on the Internet.................................................................................. 9
    A Basic Approach to Legal Research in the Law Library............................................ 9
    Six Time-Saving Research Tips................................................................................. 11
    An Online Search Strategy...................................................................................... 14
    Understand the Legal Uncertainty Principle............................................................ 16
    Know When You’re Done........................................................................................ 16
    
    3
    
    An Overview of the Law
    What Is the Law?..................................................................................................... 20
    Foundations of American Law................................................................................. 20
    The Increasing Importance of Statutes and Regulations........................................... 21
    The Development of American Common Law......................................................... 21
    Where Modern American Law Comes From............................................................ 22
    About Going to Court............................................................................................. 22
    
    4
    
    Putting Your Questions Into Legal Categories
    The Land of the Law................................................................................................ 32
    Find the Broad Legal Category for Your Problem..................................................... 33
    Identify Specific Terms for Your Problem.................................................................. 40
    Searching by Subject Matter Categories on the Internet........................................... 47
    Key Word Searching on the Internet........................................................................ 47
    Searching With Google........................................................................................... 54
    
    5
    
    Getting Some Background Information
    How Background Resources Can Help................................................................... 62
    Self-Help Law Resources......................................................................................... 62
    Law Textbooks........................................................................................................ 63
    Legal Encyclopedias................................................................................................ 64
    Form Books . .......................................................................................................... 70
    Practice Manuals.................................................................................................... 73
    Law Reviews and Other Legal Periodicals............................................................... 75
    Specialized Loose-Leaf Materials............................................................................ 80
    Treatises and Monographs....................................................................................... 81
    Restatements of the Law.......................................................................................... 82
    Background Resources on the Internet.................................................................... 83
    
    6
    
    Constitutions, Statutes, Regulations and Ordinances
    Constitutional Research.......................................................................................... 90
    Introduction to Federal Statutes............................................................................... 93
    How to Find Statutes in the United States Code...................................................... 94
    How to Find a Recent or Pending Federal Statute Online...................................... 103
    Finding Out-of-Date Federal Statutes in the Law Library........................................ 104
    Finding State Statutes in the Law Library and on the Internet................................. 105
    Finding Recently-Enacted or Pending State Statutes............................................... 109
    How to Read Statutes............................................................................................ 112
    The Importance of Cases That Interpret Statutes..................................................... 115
    Using Words and Phrases to Interpret Statutes....................................................... 116
    Using Attorney General Opinions to Interpret Statutes.......................................... 117
    Using Legislative History to Interpret Statutes........................................................ 119
    Using Uniform Law Histories to Interpret Statutes................................................. 122
    Regulations........................................................................................................... 123
    Procedural Statutes and Rules............................................................................... 130
    Local Law—Ordinances........................................................................................ 131
    
    7
    
    Understanding Case Law
    What Is a Case?.................................................................................................... 136
    How Cases Affect Later Disputes........................................................................... 147
    
    8
    
    How Cases Are Published
    Federal Cases........................................................................................................ 154
    State Court Cases.................................................................................................. 156
    Keeping Case Reporters Up-to-Date...................................................................... 156
    The Newest Cases................................................................................................. 157
    Publishing Cases on the Internet........................................................................... 158
    
    9
    
    Finding Cases
    Interpreting Case Citations.................................................................................... 162
    How to Find Cases in the Law Library................................................................... 164
    How to Find State Cases on the Internet................................................................ 176
    Finding Federal Case Law on the Internet.............................................................. 179
    Using VersusLaw to Research Federal and State Case Law..................................... 179
    Using Westlaw to Find Cases by Key Words and Other Search Criteria................. 182
    The Next Step....................................................................................................... 183
    
    10
    
    Shepard’s, Digests and the Internet:
    Expand and Update Your Research
    Shepard’s Citations for Cases................................................................................. 186
    Shepardize! Online............................................................................................... 200
    The West Digest System........................................................................................ 202
    
    11
    
    How to Write a Legal Memorandum
    Why Prepare a Legal Memorandum?.................................................................... 212
    How to Prepare a Legal Memorandum.................................................................. 212
    Research Hypotheticals and Memoranda.............................................................. 213
    Research Problem: Government Tort Liability Hypothetical (Texas)....................... 214
    Research Problem: Burglary Hypothetical (California)........................................... 222
    Research Problem: Alimony Hypothetical (West Virginia)...................................... 228
    Online Research Project, March 2007................................................................... 234
    
    12
    
    The Legal Research Method: Examples
    The Facts............................................................................................................... 242
    Classify the Problem............................................................................................. 242
    Select a Background Resource.............................................................................. 243
    Use the Legal Index.............................................................................................. 243
    Get an Overview of Your Research Topic............................................................... 249
    
    Use Shepard’s Citations for Cases.......................................................................... 253
    Check the Pocket Parts.......................................................................................... 257
    Use Shepard’s and Digests to Find On-Point Cases............................................... 259
    Summary.............................................................................................................. 261
    
    Appendix
    
    Glossary of Legal Terms
    
    Index
    
    Library Exercises
    
    Internet Exercises
    
    Paperchase............................................................ 13
    
    Finding a Federal Statute on the Internet.............. 103
    
    Using Citations to Find Cases................................ 29
    
    Finding a State Statute on the Internet.................. 108
    
    Using Am. Jur........................................................ 68
    
    Finding Pending State Legislation......................... 110
    
    Finding Law Reviews: Exercise One ..................... 79
    
    Finding an Attorney General Opinion.................. 118
    
    Finding Law Reviews: Exercise Two....................... 80
    
    Finding a Federal Regulation............................... 127
    
    Using a Loose-Leaf Service.................................... 81
    
    Finding a State Regulation................................... 129
    
    Using Treatises....................................................... 82
    
    Finding a State Case on the Internet . .................. 177
    
    Finding a Statute From Its Citation:
    Exercise One...................................................... 95
    
    Finding a Federal Case on the Internet................. 180
    
    Finding a Statute From Its Citation:
    Exercise Two...................................................... 96
    Finding Statutes by Their Popular Names............... 98
    Finding Federal Statutes by Using
    the Index to the U.S. Codes . ........................... 100
    Using Annotated Code Index to Find
    a Federal Statutory Scheme.............................. 101
    Finding Statutes by Pub. L. No. . ......................... 105
    Using Words and Phrases.................................... 117
    Finding the Legislative History of
    Federal Statutes ............................................... 120
    Using U.S. Code Congressional and
    Administrative News........................................ 121
    Finding Federal Regulations................................. 126
    The Nuts and Bolts of a Case............................... 144
    Anatomy of a U.S. Supreme Court Case............... 151
    How to Use Shepard’s Citations: Statutes............. 171
    Finding Cases by Popular Name.......................... 175
    
    Summaries
    How to Use the Law Library to Find a State Statute
    or Amendment Passed Within the Past Year....... 109
    How to Find Federal Regulations......................... 124
    How to Find State Regulations in the
    Law Library...................................................... 128
    How to Shepardize Federal Statutes..................... 168
    How to Shepardize State Statutes......................... 168
    How to Find Federal Cases When
    the Citation Is Unknown.................................. 172
    How to Find U.S. Supreme Court
    Cases When the Citation Is Unknown.............. 172
    How to Find State Cases When No
    Citation Is Known............................................. 174
    How to Find the Text of a U.S. Supreme
    Court Case Decided Over One Year Ago.......... 175
    How to Find a State Supreme Court Case
    Decided More Than One Year Ago................... 175
    
    Using Shepard’s Citations: Cases......................... 198
    
    How to Find the Text of a U.S. Supreme Court
    Case Decided Within the Past Year................... 176
    
    Using A.L.R., Case Headnotes
    and Shepard’s.................................................. 200
    
    How To Find a State Supreme Court Case
    Decided Within the Past Year............................ 176
    
    Using Digests...................................................... 207
    
    How to Shepardize State Court Cases.................. 197
    
    Using the American Digest System...................... 209
    
    How to Shepardize U.S. Supreme
    Court Cases...................................................... 197
    How to Find Similar Cases in
    Different States................................................. 208
    
    Introduction
    
    I
    Your Legal Companion
    
    I
    
    f you’re new to legal research and you need to find
    some legal case or law, you may be apprehensive.
    Whether you’re in front of a computer or in a law
    library, it feels like you’re searching for the proverbial
    needle in the haystack. After all, there are so many different
    research resources and so many places to look. How can
    you efficiently locate the relevant material?
    Relax.
    With a little practice and some diligence, you’ll find
    everything you need. Legal research may seem like strange
    unchartered territory, but it’s not. This book will serve as
    your map (or in modern parlance, your GPS locator). Once
    you research a couple of topics, you will soon find that
    there’s a simple method to this madness.
    One key is to dive right in. Opening books and viewing
    legal websites will make much of this book come alive in
    a way that our words, no matter how carefully chosen,
    cannot. You will especially benefit by actually doing—one
    step at a time—the research exercises set out in some of
    the chapters, and by completing the research problems
    provided.
    Keep in mind that legal research comes in many forms
    and that legal researchers have a myriad of faces. So, we
    have designed this book to be a flexible tool, of use to
    researchers of various levels of sophistication.
    If you are new to legal research, start with Chapter 2 and
    work your way through the book. Chapter 2 will introduce
    you to an efficient and sensible method for approaching
    most any legal research project. Chapter 3 provides an
    overview of our legal system.
    
    Chapters 4 through 11 show you how to:
    • identify your research problem according to
    recognized legal categories;
    • locate books that will give you an overview of the laws
    that affect your particular issues;
    • find and use law resources on the Internet;
    • find, read and understand the law itself: statutes (laws
    passed by legislatures), regulations (rules issued by
    government agencies) and cases (decisions by courts);
    • use the tools found in all law libraries—Shepard’s
    Citations for Cases and case digests—that let you
    find court opinions that address the issues you’re
    interested in; and
    • organize the results of your research into a legal
    memorandum.
    Chapter 12 provides real-life examples that put all the
    steps together and gives you a clear picture of how to solve
    a legal research problem. And of course, throughout this
    book, we also provide an overview of how to use and locate
    the types of resources available on the Internet.
    Chapter 11 contains a set of legal research problems
    and answers that let you test your skills in a law library.
    Library and Internet exercises that enhance your skills
    in key areas are also contained in the chapters. Finally,
    Chapters 2 through 10 have review questions and answers.
    If you already have some general legal research skills but
    want guidance on a particular aspect or phase, turn to
    the appropriate chapters for a thorough explanation of a
    particular strategy.
    
    2
    
    Legal Research
    
    If you want a quick refresher on the specific steps
    involved in a particular research task—for example, how to
    find a particular state statute you’ve heard about—use our
    “Summing Up” feature. These are in colored boxes. A list
    of summaries directly follows the Table of Contents in the
    front of the book.
    In short, when it comes to finding that legal needle in the
    haystack, don’t fear. If it’s out there, we’ll help you find it.
    
    We’d Like to Hear From You
    The registration form at the back of the book allows us
    to notify you of current product information and is our
    way of hearing from our readers about how they liked (or
    didn’t like!) this book. We use your comments when we
    prepare for new printings and editions. But we have found
    that people tend to fill the form out right away, before they
    have used the book and can tell us specifically what worked
    and what didn’t. Please note your thoughts below as you
    use the book, then complete the form and mail it to us at
    Stephen Elias/Legal Research Book, Nolo, 950 Parker Street,
    Berkeley, CA 94710.
    
    Notes:
    
    ●
    
    C H A P T E R
    
    1
    Quick Legal Research Tips
    
    T
    
    his book provides the information you need
    to systematically research the vast written and
    electronic resources that together make up “the
    law.” But instead of learning legal research techniques, you
    may just want to find specific items such as statutes, cases,
    regulations or plain-English overviews of legal topics.
    Here are some quick tips on using the Internet to find
    and read these and other law-related materials. Each quick
    tip section contains a cross-reference to the part of this
    book that handles the particular task in more detail.
    
    I want to use Google and other online
    search engines to perform keyword
    searches.
    See Chapter 4 for more information on using Google as
    a legal search engine. For more information on using free
    Westlaw or LexisNexis services in your law library to find
    legal references, see Chapter 9.
    If you want a solid answer to a legal question, you
    will need to undertake a more systematic search of
    available legal resources. See Chapter 2 for an overview of
    the legal research process online and in the law library.
    
    I want to find a federal statute (law
    enacted by Congress and signed by
    the president).
    The most direct route is to use the FindLaw website (www.
    findlaw.com/casecode/uscodes/), which permits you to
    search federal laws (organized in the U.S. Codes) by title,
    section, or keyword. You can also use the Google search
    engine. When using Google, provide the literal name or
    number of the law in quotation marks. If the new law has
    a lot of words, it usually works to just use the distinctive
    elements of the phrase. For example, when looking for the
    Bankruptcy Abuse Prevention and Reform Act of 2005,
    the phrase “bankruptcy abuse” would be sufficient for the
    statute’s name. Similarly, if the law has a nickname, you
    can use that phrase. If you can think of key words that
    identify the law, provide those as well. For instance, if a
    new law creates an additional procedure for collecting child
    support, you could likely find it by typing in the terms:
    “child support” and “collection.” If you know the year that
    the law was passed, add that as well (so that you don’t get an
    out-of-date law by the same name). See Chapter 6 for more
    detail on searching for federal statutes online and in the law
    library.
    
    4
    
    Legal Research
    
    I want to find a state statute (law
    passed by state legislature).
    Our first choice is to use the Cornell Law School site (www.
    law.cornell.edu/states/listing.html) where you will see a
    state-by-state index for state laws. If you search instead
    with Google, type your state’s name (so that the search
    engine won’t give you an Illinois law while you are in Texas)
    and then provide the literal name or number of the law,
    in quotation marks. If the new law has a lot of words, it
    usually works to just use the distinctive elements of the
    phrase. Similarly, if the law has a nickname, you can use
    that phrase. For example, you can locate California’s sex
    offender registration law (AB 488) by typing: “Megan’s
    Law” California. If you can think of key words that identify
    the law, provide those as well. For instance, if a new law
    creates an additional procedure for granting pregnancy
    leave to employees, you could likely find it by typing in
    the terms: “pregnancy leave” and “employee.” If you know
    the year that the law was passed, add that as well (so that
    you don’t get an out-of-date law by the same name). See
    Chapter 6 for more detail on searching for state statutes
    online and in the law library.
    
    I want to find a state statute (law passed
    by state legislature) organized by topics.
    Again, we recommend the Cornell Law School website
    (www.law.cornell.edu/topics/state_statutes.html), which
    has organized state statutes by topic. See Chapter 6 for more
    detail on searching for state statutes online and in the law
    library.
    
    I want to find a U.S. Supreme Court case
    (a published Supreme Court opinion).
    Try the Cornell Law School website, which provides a
    thorough index of Supreme Court decisions (www.law.
    cornell.edu/supct/index.html). If you are searching for a
    Supreme Court case using Google, type “Supreme Court”
    in quotation marks and then add any combination of the
    following elements:
    • Type one or both names of the parties to the case. You
    can also search with the “v.” abbreviation, as well—for
    example we typed in Planned Parenthood v. Casey and
    retrieved a copy of the 1992 Supreme Court Case.
    
    • Include one or more terms that describe the subject
    matter of the case. For example, we typed ‘Betamax’
    and ‘Supreme Court’ and retrieved the 1984 Supreme
    Court case, Sony v. Universal.
    • Type the year of the case.
    See Chapter 9 for more detail on finding U.S. Supreme
    Court cases online and in the law library.
    
    I want to find a federal court case
    (a published judicial opinion).
    Start at the Cornell Law School website, which provides a
    thorough index of federal court decisions (www.law.cornell.
    edu/federal/opinions.html). If you are searching for a
    federal case law using Google, type any combination of the
    following elements:
    • Type one or both names of the parties to the case. You
    can also search with the “v.” abbreviation, as well—for
    example Planned Parenthood v. Casey.
    • Include one or more terms that describe the subject
    matter of the case.
    • Type the year of the case.
    • Type the name of the court that heard and decided
    the case.
    Note that cases decided previous to 1995—that is, before
    the Internet was used to catalog court cases—usually
    are only available in private databases that require a
    subscription for a fee. See Chapter 9 for more detail on
    finding a federal court case online and in the law library.
    
    I want to find a state court case
    (published opinions by state courts).
    Begin with the Cornell Law School website, which provides
    a thorough index of state court decisions (www.law.cornell.
    edu/opinions.html#state). If you are searching for a state
    case using Google, type the name of the state and any
    combination of the following elements:
    • Type one or both names of the parties to the case. You
    can also search with the “v.” abbreviation, as well—for
    example Planned Parenthood v. Casey.
    • Include one or more terms that describe the subject
    matter of the case.
    • Type the year of the case.
    • Type the name of the court that heard and decided
    the case.
    
    5
    
    	chapter 1: quick legal research tips	
    
    Note that cases decided previous to 1995—that is, before
    the Internet was used to catalog court cases—usually
    are only available in private databases that require a
    subscription for a fee. See Chapter 9 for more detail on
    finding state courts cases online and in the law library.
    
    I want to find a federal regulation
    (rules issued by federal agencies).
    The FindLaw website is a good place to start. FindLaw
    provides a searching system for the federal code of
    regulations (www.findlaw.com/casecode/cfr.html). See
    Chapter 6 for more detail on finding federal regulations
    online and in the law library.
    
    I want to find a state regulation
    (rules issued by state agencies).
    You’ll find many state regs by using FindLaw (www.findlaw.
    com/casecode/state.html). See Chapter 6 for more detail on
    finding state regulations online and in the law library.
    
    I want to find an ordinance passed by a
    particular city or county (local laws).
    Your best bet for finding city and county ordinances is
    FindLaw. Go to the FindLaw link for state laws (www.
    findlaw.com/casecode/). Scroll down to the list of U.S. State
    Laws and click the relevant state. The next web page should
    provide available city and county ordinances for that state.
    See Chapter 6 for more detail on finding ordinances online
    and in the law library.
    
    I want to find a plain-English discussion
    of a particular legal topic.
    Two sites provide plain-English legal information. Nolo,
    the publisher of this book (www.nolo.com), offers a great
    deal of helpful legal resources. On the homepage, enter the
    keywords in the search box and choose “Search Entire Site”
    from the drop-down menu below the search box. FindLaw
    (www.findlaw.com) also provides helpful legal resources for
    consumers and for lawyers. As you’re also aware, the Google
    search engine will also help you find legal information.
    
    Type relevant key words into the search box. For instance,
    if you are looking for articles on the status of medical
    marijuana law in Colorado, enter these terms in this
    format: [medical marijuana law Colorado]. See Chapter 5
    for more detail on finding plain-English discussions online
    and in the law library.
    
    I want to find a particular
    state or federal court form.
    The Google search engine (www.google.com) is the easiest
    method for locating state or federal forms. Try typing any
    combination of the following elements into the search box:
    • the state that issued the form or, if it’s a local form,
    the court where you will use it;
    • the title of the form or a few unique terms that
    would likely be in the title—for example, “Petition
    Administer Estate” for a “Notice of Petition to
    Administer Estate;”
    • The subject matter of the form in the absence of a
    specific name—for example “Summons Eviction;”
    • It may also help to use the term “form.”
    See Chapter 5 for more detail on finding federal and state
    court forms.
    
    I want to find discussions of
    legal issues in the news.
    Using the Google search engine (www.google.com), you
    can search for news results in two ways. First, you can run
    a search on Google’s main page and then click the “News”
    link on the top of the search results page. Or, you can direct
    a search to find only news articles. To perform the latter, go
    to the Google home page and click “more” and then click
    “News Search.”
    Stay on top of breaking legal news stories. If you
    want to stay abreast of a specific news subject,
    try “Google News Alerts.” You will receive daily (or “as it
    happens”) emails based on your choice of query or topic.
    Go to www.google.com/alerts and type in the search terms.
    
    ●
    
    C H A P T E R
    
    2
    An Overview of Legal Research
    Patience and Perspective . .................................................................................................. 8
    How to Find (and Feel at Home in) a Law Library .............................................................. 8
    Legal Research on the Internet............................................................................................ 9
    A Basic Approach to Legal Research in the Law Library...................................................... 9
    Step 1: Formulate Your Legal Questions....................................................................... 10
    Step 2: Categorize Your Research Questions................................................................ 10
    Step 3: Find Appropriate Background Resources.......................................................... 11
    Step 4: Look for Statutes.............................................................................................. 11
    Step 5: Find a Relevant Case....................................................................................... 11
    Step 6: Use Shepard’s and Digests to Find More Cases ............................................... 11
    Step 7: Use Shepard’s to Update Your Cases................................................................ 11
    Six Time-Saving Research Tips........................................................................................... 11
    Take Careful Notes ..................................................................................................... 11
    Check Out the Law Library ......................................................................................... 12
    Collect Your Materials in Advance . ............................................................................. 12
    Find Special Tools and Resources Unique to Your State................................................ 12
    Get Yourself a Good Law Dictionary............................................................................ 12
    Use the Catalog........................................................................................................... 12
    Library Exercise: Paperchase .................................................................................. 13
    An Online Search Strategy................................................................................................ 14
    General Information About a Legal Subject.................................................................. 14
    The Law Itself............................................................................................................... 14
    Current Legal Events.................................................................................................... 15
    Reliable Answers to Specific Legal Questions.............................................................. 15
    Understand the Legal Uncertainty Principle . ................................................................... 16
    Know When You’re Done.................................................................................................. 16
    
    8
    
    Legal Research
    
    T
    
    his chapter provides a basic approach to
    virtually any legal research task in the law library
    or on the Internet. This is nothing we invented;
    rather, it is the ­almost universal method of experienced
    legal researchers. Once you understand how this overall
    approach works, any research task will be greatly simplified.
    Although some of what we say is fairly conventional
    (for example, keep accurate notes), much of it isn’t. For
    ­example, we suggest that achiev­ing the highest quality of
    legal research requires a commitment to perseverance and
    patience, and a belief in yourself.
    
    Patience and Perspective
    A certain type of attitude and approach are required
    to ­efficiently find the information you need among the
    ­billions of legal facts and opinions in a law library or on the
    Internet. ­Probably the most important quality to ­cultivate
    is patience—a willingness to follow the ba­sic ­legal research
    method diligently, even though it’s a time-consuming
    process.
    Unfortunately, many legal researchers are impa­tient,
    preferring to make a quick stab at finding the particular
    piece of information they think they need. While a quest
    for immediate gratification is some­times appropriate
    when attempted by a master re­searcher, it most often
    ­results in no satisfaction at all when attempted by the less
    experienced.
    Perhaps it will be easier to understand how legal r­ esearch
    is best approached if we take an analogy from a­ nother field.
    Seeking and finding legal information is a lot like
    learning how to cook a gourmet dish. To cook the dish,
    you first need to settle on a broad cate­gory of cuisine
    —Japanese, French, Nouvelle California, etc. Next, you find
    one or two good cookbooks that provide an overview of
    the tech­niques common to that specific cuisine. From there
    you get more specific: You find a recipe to your l­iking, learn
    the meaning of unfamiliar cook­ing terms, and make a list
    of the ingredients. Finally, you assemble the ­ingredients
    and carefully fol­low the instructions in the recipe.
    Legal research also involves identifying a broad category
    before you search for more specific informa­tion. Once you
    know the general direction in which you’re headed, you are
    prepared to find an appropri­ate background resource—an
    encyclopedia, law jour­nal, Internet article, treatise—to
    educate yourself about the general issues involved in your
    research. Armed with this overview, you can then delve
    
    into the law itself—cases, statutes, regulations—to find
    definitive ­an­swers to your questions. And, when your
    research is finished, you can pull your work together into
    a co­herent written statement. (Writing up your research is
    crucial to knowing whether you really are finished.)
    Of course, in the legal research process there are lots
    of opportunities for dead ends, misunderstand­ings and
    even mental gridlock. Answers that seemed in your hand
    five minutes ago evaporate when you read a later case or
    ­statutory amendment. Issues that seemed crystal clear
    ­become muddy with continued reading. And authoritative
    experts often contradict each other.
    Take heart. Even experienced legal researchers often
    thrash around some before they get on the right track. And
    the truth is, most legal issues are confused and confusing—
    that’s what makes them legal issues. Just remember that the
    main difference between the expert and novice ­researcher
    is that the expert has faith that sooner or later the research
    will pan out, while the novice too easily ­becomes convinced
    that the whole thing is hopeless. ­Fortunately, this book—
    and many law librarians—are there to help the strug­gling
    legal researcher.
    
    How to Find (and Feel at Home in)
    a Law Library
    Before you can do legal research, you need access to good
    research tools. The best tools are still found primarily in
    law libraries, although sometimes legal research involves
    government document and social science collections.
    Many law libraries are open to the public and can be
    found in most federal, state and county courthouses.
    Law school libraries in public universities also routinely
    grant access to members of the public, al­though hours of
    access may be somewhat restricted depending on the s­ ecurity
    needs of the school. It is also often possible to gain access to
    private law li­braries maintained by local bar ­associations,
    large law firms, state agencies or large corporations if you
    know a local attorney or are willing to be persistent in seek­
    ing permission from the powers that be.
    Law libraries can be intimidating at first. The walls
    are lined with thick and formally bound books that tend
    to look exactly alike. Then too, for the layperson and
    ­beginning student, it is easy to feel that you are treading
    on some sacred reserve, espe­cially in courthouse libraries
    where the average user is a formally-attired lawyer and
    where, on occa­sion, a judge is present. You might even
    
    	chapter 2: An Overview of Legal Research	
    
    have the secret fear that if it is discovered that you’re not a
    lawyer, you’ll either be asked in a loud voice to leave or, at
    best, be treated as a second-class citizen.
    If you remember that public funds (often court fil­ing
    fees) probably helped buy the books in the library and pay
    the people running it, any initial unease should disappear.
    It may also help you to know that most librarians have a
    sincere interest in helping anyone who desires to use their
    library. While they won’t answer your legal questions for
    you, they will often put in your hands the materials that
    will give you a good start on your research or help you get
    to the next phase.
    A good way to deal with any feelings of intimi­dation
    is to recall your early experiences with the public library.
    ­Remember how the strangeness of all the book shelves,
    the catalog and the reference desk rather quickly gave way
    to an easy familiarity with how they all fit together? Your
    ­experience with law libraries will similarly pass from fear to
    mastery in a very short time.
    Helping you understand the cataloging, cross-ref­erence
    and indexing systems law libraries use is one of the most
    important functions of this book. As you pro­ceed, we hope
    you will see that learning to break the code of the law
    library can be fun.
    
    Legal Research on the Internet
    When the first edition of this book was published in 1982,
    the Internet was largely unknown to the American public.
    Now, “being on the Internet” is pretty much like having
    a phone, very common if not yet totally universal. And
    when questions arise in everyday life, we increasingly turn
    to the Internet for answers. Want to know where the term
    “redneck” came from? Type the word in one of the searchengine query boxes that accompany every Internet browser
    and you’ll find more information on the subject than you
    probably care to read.
    As with general information, a lot of legal information
    is accessible “out there” in cyberspace. In Chapter 4, we’ll
    explain how one search engine—Google—has revolutionized
    many of the common legal research tasks. Unfortunately,
    much of the information that you want can still only be
    reached through “closed” databases that aren’t picked up
    by the common search engines. Thanks to some great
    Internet “catalogs,” however, finding the law—­statutes,
    cases, regulations and interpretative materials—is a
    straightforward task. Throughout this book we explain how
    
    9
    
    to use these catalogs and do your research in the ­comfort
    of your home or office. Also, in Chapter 4 we provide an
    overview of online searching techniques. We encourage you
    to familiarize yourself with that chapter ­before e­ mbarking
    on your Internet legal research journey.
    
    A Basic Approach to Legal Research in
    the Law Library
    The core task in answering any legal question is to
    determine the likely answer you would get from a judge. To
    do this, your ultimate goal will be to find published court
    opinions that answer the question in a factual context that
    is as close to yours as possible. The diagram depicted below
    takes you through the typical steps and resources necessary
    to reach that goal when using a law library.
    As you can see, the diagram is shaped a bit like an
    hourglass. You start with a universe of possibilities, then
    ­narrow your search until you find one or two relevant
    cases. Those cases, in turn—with the assis­tance of certain
    cross-reference tools—allow you to rapidly locate many
    ­additional relevant cases.
    Your most fervent hope when you start a basic le­gal
    ­research task is to find at least one case that per­fectly—and
    favorably—answers your specific re­search question in an
    identical factual context. Of course, this goal is seldom, if
    ever, met in reality. But the more cases you can locate that
    are relevant to your question, the better your chances of
    nailing down a firm answer.
    The method depicted in the diagram is ap­propriate for
    the type of research that involves an open-ended question
    about the law. However, it may be overkill for someone who
    has a very specific research need, such as finding a specific
    case, reading a specific statute, finding out whether a
    specific case is still good law, and so on. For those tasks, see
    the chart at the end of the chapter.
    Also, we don’t intend the diagram as a lockstep approach
    to legal research. For example, it may be most efficient
    in certain circumstances to start your research in a West
    ­Digest (a tool that summarizes cases by the legal topics they
    address) instead of using a background resource or code
    for this purpose. It all depends on such variables as the
    amount of informa­tion you already bring to your quest,
    the time you have to spend and the level of certainty you
    are after. Your goal, after all, is to arrive at the best possible
    answer to your question in the least possible time, not to
    mechanically complete a laborious research process.
    
    10
    
    Legal Research
    
    Here, then, is the diagram and a discussion of each
    ­research step portrayed in it.
    Internet note: If you are doing the bulk of your research
    on the Internet, you may be using a different set of tools in
    a somewhat different order.
    
    Step 1: Formulate Your Legal Questions
    The top box, “your broad legal research topic,” represents
    the first step in legal research: formulating the questions
    you wish to answer. This is not as easy as you may think.
    Often we think we have a question in mind but when we try
    to answer it, we find that we don’t quite know what we’re
    looking for. The best bet here is to make sure that your
    question has a logical an­swer. For instance, if you have been
    bitten by a dog and are looking for information about dog
    bites, break your search down into some ­specific answer­able
    questions, such as:
    • Who is responsible for injury caused by a biting dog?
    • What facts do I have to prove to sue and win
    ­compensation for the dog bite?
    • Is there a statute or ordinance that covers dog bites?
    • Does it make any difference if the dog has or has not
    ever bitten anyone before?
    Keep in mind that the first articulation of your research
    questions will probably change as your research progresses.
    In this example, you may start out thinking that your issue
    involves dogs, only to find out that it really involves the
    duties of landowners to prevent harm from dangerous
    condi­tions on their property.
    
    Step 2: Categorize Your Research Questions
    The next box down represents the classification stage.
    ­Because of the way legal materials are orga­nized, it is ­usually
    necessary to place your research topic into a ­category
    described by using the three variables shown in this box.
    Exactly how this is ac­complished is the primary subject of
    Chapter 4.
    Also covered in Chapter 4 is the next stage in the chart,
    when you break down your question into many words and
    phrases. That enables you to use legal in­dexes to find a
    background discussion of your topic.
    
    	chapter 2: An Overview of Legal Research	
    
    Step 3: Find Appropriate Background Resources
    When starting a legal research task, you need an overview
    of the legal issues connected with your questions and an
    idea of how your questions fit into the larger legal fabric.
    This background information can normally best be o
    ­ b­
    tained from books and articles, written by experts, that
    summarize and explain the subject. How to identify and use
    these background resources is covered in Chapter 5.
    
    11
    
    Step 6: Use Shepard’s and Digests to Find
    More Cases
    Once you find a relevant case, Shepard’s Citations for Cases
    and the West Digest system allow you to rapidly go from
    that case to any other cases that have some bearing on
    your precise questions. These tools are covered in detail in
    Chapter 10.
    
    Step 7: Use Shepard’s to Update Your Cases
    Step 4: Look for Statutes
    After you review background resources, you will want
    to proceed to the law itself. Usually, you should hunt for
    statutory law first. In most instances, an analysis of the
    law starts with legislative or administrative enactments—
    statutes and rules—and ends with court decisions that
    interpret them. You too should usually deal with the statu­
    tory material first and the cases second. We show you how
    to research statutes in Chapter 6.
    However, some important areas of the law are developed
    primarily in the courts—the law of torts (personal in­juries)
    is a good example. If you have a tort problem—and the
    background resource provides you with appropriate
    ­references—you might wish to start with cases first, and
    then come back and research statutory law if and when it
    is indicated. This alternative path is shown on the chart by
    the line that goes directly from “background resources” to
    “relevant case.”
    
    Step 5: Find a Relevant Case
    After finding one or more relevant statutes or rules, you
    will want to see how they have been interpreted by the
    courts. To pinpoint cases that discuss the statute (or rule,
    regulation or ordinance) you are interested in, use the tools
    listed in the next box in the “Basic Legal Research Method
    Chart”: case notes and Shepard’s Citations for Statutes.
    These tools are addressed in Chapter 9.
    As soon as you find a case that speaks directly to your
    research question, you are almost home. This is because two
    major research tools—Shepard’s and Case Digests—crossreference all cases by the issues decided in them. So if you
    find one case discussing your question, you can often quickly
    find a bunch of ­others discussing the same question.
    
    Once you have found cases that pertain to your issue, you
    need to find out whether the principles stated in these cases
    are still valid law. To do this, you need to understand the
    factual context of each case, analyze each case for its value
    as precedent and use the digests and Shepard’s ­Citations
    for Cases to locate the most recent cases that bear on your
    issue. We show you how to do all of this in ­Chapters 7
    through 10.
    
    Six Time-Saving Research Tips
    The research method just outlined and the techniques
    ­explained in the rest of this book work only if you proceed
    methodically. Otherwise, even though you know how to
    accomplish many legal research tasks, you are still likely
    to end up sifting through the law library book by book,
    spending many hours more than are neces­sary. In this
    context, here are six tips for more efficient legal research.
    
    Take Careful Notes
    Beginning any legal research effort involves a certain
    amount of guesswork. You may make several false starts
    before adopting an approach that works. And what may
    seem like a wrong approach at first may turn out to be the
    best one after all. Unfortunately, it is human nature not to
    keep careful track of your preliminary work, which means
    that you may find yourself repeating it.
    To avoid this, teach yourself to take complete notes from
    the beginning on all the materials you’re using, includ­ing the
    location and substance of any possibly ­relevant statute, case
    or comment men­tioned in the m
    ­ aterials. It may seem like a
    burden at first, but it will soon become second nature as you
    see how often it saves you time in the long run. A good article
    entitled, “How to Look up Law and Write Legal Memoranda
    Revisited,” by F. Trowbridge Vom Baur, provides some stillsound, s­ tructured methods for documenting your research.
    
    12
    
    Legal Research
    
    It a­ ppears in a law journal called The Practical Lawyer (May
    1965) and can be found in most law libraries.
    
    Check Out the Law Library
    Law libraries are always organized according to some
    plan. When first using a law library, it is helpful to take a
    brief self-guided tour, carefully noting where the major
    groupings of materials are located, so you’ll know where to
    go for your books instead of repeatedly searching from wall
    to wall. This book introduces you to legal research materials
    and tools such as codes, case reports, digests, encyclopedias
    and Shepard’s Citations. Knowing where they are before you
    dig into your research will make your efforts more efficient.
    ­Although many libraries have maps at the reference counter
    that show where materials are located, they don’t replace
    the walk-around method.
    
    Collect Your Materials in Advance
    As you check different cases and statutes for relevant material,
    you may find yourself reading only a few lines in many different
    books. So it is a good idea to make a list of all the books involved
    in the next phase of your research task and gather them in one
    place before you start reading. This allows you to find everything
    you need at once rather than continually p
    ­ opping up and down.
    While this advice may seem obvious, apparently it isn’t; you can
    observe the “jump up and scurry” approach to legal research on
    any visit to the library.
    
    Find Special Tools and Resources
    Unique to Your State
    This book focuses on the legal research resource tools that
    are common to the 50 states and are found in the great
    majority of law libraries. We also discuss some of the
    ­resources particular to the more populous states. There
    are, however, a number of special state-specific tools and
    resources that we don’t mention. So in addition to using the
    major legal research materials and tools discussed here, check
    with your law librarian about other state-specific ma­terials.
    For instance, where we discuss legal encyclopedias in
    Chapter 5, we provide the titles of the two main national
    legal encyclopedias and 15 state-specific encyclopedias. If
    you are interested in the law of one of the states for which
    we have not specified an encyclopedia, don’t turn to one
    of the national ones without first checking to see whether
    the subject you are interested in has been dealt with in a
    
    r­ esource designed specifically for your state. If you can find
    such local materials (perhaps a law review article or a state
    bar publication), you stand a good chance of finding the
    answer to your question a lot faster than if you use general
    or national materials.
    
    Get Yourself a Good Law Dictionary
    Your legal research will constantly introduce you to new and
    strange terminology that has developed over hundreds of
    years. When doing research in the law library, it is ­extremely
    helpful to have a good law dictionary at your fingertips.
    The most well-known law dictionary is Black’s Law
    ­Dictionary. Unfortunately, many of the entries are hard to
    decipher and are not sufficiently context-sensitive—that is,
    they are too abstract to fit real-life situations. More userfriendly dictionaries that should serve you well are:
    • Law Dictionary, Gifis (5th ed., Barron’s, 2003); and
    • Ballentine’s Law Dictionary: Legal Assistant Edition,
    Handler (Thomson, 1993).
    
    Use the Catalog
    Most law libraries will have a catalog that lists by author
    and ­subject all of the books and periodicals in the library.
    These days, the catalog will likely be computerized, although
    a few may still use the card system. The call number on
    the upper left-hand portion of the card and on the screen
    tells where the item is located in that library. If an unaided
    search seems a bit intimidating at first, the law l­ibrarian will
    be happy to show you where to find your materials.
    It is important to remember that many important legal
    research materials—such as articles, statutes and cases—are
    collected and published in large books or sets of books. A
    catalog will tell you where the books are located, but it will
    not tell you where a specific article, case or statute is. For
    example, if you want to do your own divorce and there is
    no good self-help book for your state, you could use the
    catalog to find such helpful background materials as a law
    school textbook on divorce law, the Family Law Reporter (a
    loose-leaf publication) and any practice manuals or form
    books on divorce that have been published for your state.
    However, you couldn’t use it to locate the statutes of your
    state concerning divorce; nor would the catalog help you
    find any cases on a particular point. To do that, you will
    have to use legal indexes and other research tools that we
    discuss later in the book.
    
    	chapter 2: An Overview of Legal Research	
    
    13
    
    Library Exercise: Paperchase
    This Paperchase will lead you to many of the legal
    
    column u
    ­ nder “C.A. 10 (N.M.) 1985. Eighth
    
    ­research resources that you will be learning to use in this
    
    Amendment does not apply until after adjudication
    
    book. Follow the instructions, and when you are finished
    
    of guilt.” What is the third word in the name of the
    
    you will have a profound and witty quotation as well as
    
    defendant? Write the word in blank (1). Hint: The
    
    the knowledge of where things are in your law library.
    
    Court of Appeals cases are in alphabetical order by
    
    Here is the quotation, with blanks to be filled in
    ­according to the instructions for each word:
    “______________________ is ______________________ly
    (1)
    
    (2)
    
    ______________________ and ______________________
    (3)
    
    (4)
    
    _______________________ .” _______________________
    (5)
    (6)
    ______________________ , ____________–___________
    .
    (7)
    
    (8)
    
    name of state, regardless of the circuit they belong to.
    F. Find U.S. Code Congressional and Administrative
    
    (9)
    
    A. Find the United States Code Annotated (U.S.C.A.).
    
    News. Find the volumes for 103rd Congress First
    ­Session 1993, and select Volume 2. The pages in
    the first part of the book are numbered 107 STAT
    1485, 107 STAT 1486, etc. Go to the act that starts
    on page 107 STAT 1547 (NATIONAL DEFENSE
    AUTHORIZATION ACT FOR FISCAL YEAR 1994).
    Find § 1702 of the act (Consolidation of Chemical
    and Biological D
    ­ efense Training Activities). What
    page is the full text on? 107 STAT _____. Write the
    page number in blank (8).
    G. Find Corpus Juris Secundum (C.J.S.) 1966 edition.
    
    Find the volumes for Title 42 Public Health and
    
    Find the article on Negligence, and find § 21, which
    
    ­Welfare. Find the volume containing Title 42 §§
    
    ­defines mere ­accident or Act of God. The definition of
    
    1771-1982. Turn to page 226. Halfway down the
    
    unavoidable accident starts on page 647. At the end
    
    page starts the first section of Chapter 16, Section B.
    
    of the first paragraph of this definition is the phrase,
    
    What is the ­number of the §? Write the number in
    
    “and in this sense the term is held to be equivalent to
    
    blank (9).
    
    or synonymous with, ‘mere accident or ___________
    
    B. Find the Supreme Court Reporter. Find Volume 80A
    and turn to page 900. What is the last name of the
    plaintiff in the case starting on page 900, Victor
    Donald _______? Write the name in blank (7).
    C. Find Federal Reporter, 2d series. Find Volume 939
    
    ­accident.’” Write the left-out word in blank (3). (If
    your library has a later edition, this won’t work.)
    H. Find American Jurisprudence 2d (Am. Jur. 2d). Find
    the article on Interest and Usury. The article begins
    with “I. In General; § 1. Definitions and distinctions.”
    
    and turn to page 808. What is the last name of the
    
    The s­ econd sentence of definitions and distinctions
    
    first named plaintiff in the case starting on page 808,
    
    starts with the phrase: “_______ interest is interest
    
    Ruth E. _______? Write the name in blank (6).
    
    computed on the principal only.” Write the left-out
    
    D. Find Federal Supplement. Find Volume 616 and turn
    to page 1528. What is the first word of the name
    
    word in blank (5).
    I. Find Words and Phrases (the large 40+ volume set).
    
    of the plaintiff in the case that starts on page 1528,
    
    Find the definition for “Neutral Spirits” in Volume
    
    ______ Blue Music, Inc.? Write the word in blank (2).
    
    28A. What is the next word defined? Write the word
    
    E. Find the Federal Practice Digest 4th. Find the
    
    in blank (4).
    
    volumes covering Criminal Law. Select Volume 35
    and turn to page 725. Find the case in the right-hand
    Answer: “Truth is rarely pure and never simple,” Oscar
    Wilde, 1854-1900.
    
    14
    
    Legal Research
    
    An Online Search Strategy
    When doing legal research, it’s pretty easy to get bogged
    down in an informational swamp. Your search efforts
    on the Internet will often produce a long list of links to
    possibly helpful sites, each of which must be visited to
    know what’s in them. While the length of your results list
    can be cut back with good key word searching techniques,
    you’ll often find the right link or links by sheer trial and
    error.
    Once you’ve found a relevant link, however, you must
    face another potential problem. How valuable is this
    information? Is it accurate? Is it up to date? And if you
    are researching primary law sources such as statutes,
    regulations and cases, is the publisher of the materials
    “official?”
    For instance, should you rely on a statute you found
    online when the site where you found it is not the official
    publisher of statutes for the state in question? While we
    can’t completely resolve these issues for you, we can make
    a few suggestions that will help you navigate the law on the
    Internet to a successful conclusion.
    The first step to doing legal research is to understand
    what type of legal information you are looking for. Legal
    questions can conveniently be divided into four types:
    • Are you searching for general information about a
    legal subject of interest?
    • Are you searching for the law itself (statutes, court
    opinions, regulations, ordinances)?
    • Are you searching for information about current legal
    events (such as celebrity trials)?
    • Are you searching for a reliable answer to a specific
    legal question?
    Here are some suggestions on how to use the Internet to
    address these legal questions.
    
    General Information About a Legal Subject
    Many people want to bone up on a particular subject. They
    are looking for the same level of information commonly
    found in a general-purpose encyclopedia. For instance, you
    might want a general discussion of:
    • What laws are involved when selling a business?
    • What’s the difference between a living trust and a
    will?
    • When is a new idea patentable?
    • What effect does divorce have on pensions earned
    during a marriage?
    
    These types of questions can be answered without
    regard to your specific circumstances. For instance, the
    laws involved when selling a business will be the same
    for everyone. In Chapter 5, we explain how to use legal
    background materials to address these types of questions,
    and we show you how to find background materials on the
    Internet.
    It’s important to know when you’re looking for
    background information and when you’re actually asking
    for an answer to a particular legal question. If your
    question can be started with “Can I …?”, “What will happen
    if …?” or “Can they …?”, you’re asking for specific legal
    authority that says, in effect, “Yes, you can” or “No, you
    can’t” in the context of your individual circumstances.
    To get reliable answers to specific questions like these
    concerning your situation, you need to dig a lot deeper
    than when you are searching for background information
    that applies to everyone. See below for an overview of how
    this type of research can be carried out on the Internet.
    
    The Law Itself
    Another category of legal information is the law itself. The
    law itself is found in what we call “primary law sources.” For
    most people, the most common primary law sources are the
    pronouncements—issued by local, state and federal legislative
    bodies—that we call ordinances, statutes and regulations.
    Lawyers are also familiar with another type of primary
    law source—court decisions that either interpret a statute,
    regulation or ordinance or make some law of their own.
    There are many reasons why you may want to find a
    particular primary law source. Two of the most likely
    reasons are:
    • You may have learned about a particular new law or
    court decision through the media or at your job, and
    you want to read it for yourself; or
    • You may want to know what the law itself says
    because you are trying to answer a specific legal
    question.
    If you are searching for the law for the first reason, your
    research will be self-limiting—that is, you will search for
    the appropriate law source, find the law source and read
    the law source, period. In Chapters 6 and 9, we provide
    examples of how to find statutes and cases online.
    If you are searching primary law sources for the second
    reason—that is, you want to answer a legal question—you
    usually will have to find and read other legal materials as well
    as the law itself. Again, see below for this type of search.
    
    	chapter 2: An Overview of Legal Research	
    
    Current Legal Events
    Many people search for information related to a current
    legal event. Recent examples would be the Anna Nicole
    Smith custody battle, the Virginia Tech shootings, or the
    events surrounding the Phil Specter murder trial. Getting
    information on current legal events involves finding articles
    and discussions of interest, online and off. We don’t address
    this type of research in this book. An excellent site for
    keeping abreast of legal developments is CourtTV [www.
    courttv.com.]
    
    Reliable Answers to Specific Legal Questions
    This category of legal research involves a hunt for the
    answer to a very specific legal question, such as:
    • I live in North Carolina. I’ve been charged with
    second offense drunk driving. My passenger was
    injured as a result. What penalties do I face?
    • Can I run a home school in North Dakota if I’ve been
    convicted of a felony?
    • My brother is the executor of our parents’ estate. I don’t
    like how he is handling it. What can I do about it?
    • I want to open a business typing divorce papers for
    people who are doing their own divorces. Will I get
    into trouble with the lawyers if I do this?
    These are the types of questions that people ask lawyers.
    To confidently answer these questions, you usually must
    turn to a variety of legal resources, including background
    discussions by experts, statutes, court opinions that
    interpret the statutes, and court opinions that make laws
    of their own (the common law). Then, you’ll want to use
    some confirming techniques (like Shepardizing) that will
    assure you that your information is current. In the rest
    of this section, we provide a brief overview of how you
    can reliably answer questions online, using the search
    techniques discussed earlier in this chapter and the step-bystep examples spread throughout the book.
    Step 1: Categorize your issue. The first step to doing legal
    research online is to put your research issue in the correct
    legal category. Chapter 4 provides a number of suggestions
    for doing this.
    Step 2: Get the lay of the land. As we point out in
    Chapter 2, before trying to answer a specific legal
    question it is always a good idea to get a little background
    information about the legal field that your question
    concerns. This background information not only alerts
    you to some of the key issues you’ll have to consider, but
    
    15
    
    also gives you a basic vocabulary that will be useful as
    you continue your research. Also, of course, by reading
    background materials, you will frequently get directed to
    the relevant statutes or cases, which you’ll have to read if
    you want a reliable answer to your question.
    Step 3: Find relevant statutory authority. After you get the
    lay of the land, you’ll want to zero in on a statute that is as
    specific to your question as possible. In Chapter 6, we show
    you how to find federal and state statutes on the Internet.
    If your background reading has pointed you to a specific
    statute, then your search should be pretty straightforward.
    However, if you have to find a statute by performing a
    category or key word search, then you’ll need to be armed
    with the proper vocabulary. See Chapter 4, where we explain
    how to come up with words for searching an index. The
    same exercises apply to preparing for a key word search.
    Step 4A: Find a relevant case interpreting the statute.
    
    Once you find a relevant statute (or regulation or
    ordinance), you will want to find out how the courts have
    interpreted it. In Chapter 9, we show you how to find
    federal and state court opinions on the Internet. The most
    comprehensive way to search for interpretations of your
    relevant statute is to enter the statute citation in the search
    box along with some appropriate key words describing the
    issue being researched.
    Step 4B: Search for a case. Sometimes there is no
    relevant statute on a particular subject. Constitutional
    law, for example, consists primarily of interpretations
    of the meaning of the Constitution as found in cases
    decided by the U.S. Supreme Court. If the answer to your
    question is likely to appear in case law, you can progress
    directly to your search for relevant cases after reading your
    background material.
    Step 5: Update your case. If you do find a relevant case,
    your next step is to find out how it has been used in other
    courts and whether the case remains good law. In Chapter
    10, we show you how to do this by using citation systems
    such as Westlaw KeyCite or the Lexis Shepardize service.
    Step 6: Assess your research results. If you have faithfully
    taken Steps 1-5, you are likely to have a tentative answer to
    your legal question. As we suggest in Chapter 11, you would
    be wise to prepare a brief legal memorandum. Writing
    down what you’ve done will help you know whether you’ve
    accomplished all that you set out to do. As you do so, ask
    yourself these questions:
    • Can I rely on the source of the background
    information I used? Was it published by a reputable
    legal publisher or legal expert? Does it conform to
    
    16
    
    Legal Research
    
    the other information I discovered while doing my
    search?
    • Was the source of the statutes and cases I found the
    official source for these items? If not, was the website
    sponsored in some way by an official source, such as
    the court or the legislature? If there is no connection
    between the website and an official source, was the
    statute or case consistent with what I learned from my
    background resource?
    • Is the way other cases treated the relevant case
    ­consistent with your understanding of the case?
    If your answers to any of these questions cast some
    doubt on the reliability or authenticity of your research
    ­results, consider paying a visit to your local law library and
    double checking your search results against the statutes and
    cases as reported by the official or established p
    ­ ublishers
    described in Chapters 5 through 9.
    
    Understand the Legal Uncertainty
    Principle
    Legal research rarely produces an absolutely certain answer
    to a complicated question. Indeed, unless you are searching
    for a simple bit of information such as the maximum jail
    sentence for arson in Texas, trying to find the definitive
    ­answer to a legal issue is often impossible.
    There is a reason for this legal “uncertainty principle.”
    Under the American justice system, any dispute that ends
    up in court is subject to the adversary process, where two
    or more parties fight it out and a judge or jury decides who
    wins. Of course, the fact that statutes are constantly cranked
    out and amended by legislatures and then subjected to
    ­judicial definition and redefinition substantially adds to the
    total confusion.
    What all this means is that defining the “law” that
    ­governs any set of facts involves predict­ing how the courts
    would rule if presented with the question. If a prediction
    is based on clear statutes and court de­cisions, the level of
    ­uncertainty will be fairly low. However, if the statutes and
    case law are themselves subject to con­flicting ­interpretations,
    as many are, then even the best legal research may amount
    to little more than a sophisti­cated form of fortune-telling.
    Put another way, while in some instances you may believe
    you have found out “what the law is,” a person with a
    ­different set of preconceptions may arrive at a different
    ­result.
    
    We mention the legal uncertainty principle simply to
    warn you against trying to nail down an absolute answer to
    most legal questions. Often, the best you can hope for is to
    understand the legal issues involved in a ­par­ticular problem
    well enough to convince those who need to be convinced
    that your view is correct.
    
    Know When You’re Done
    Once you understand that your search for the truth will
    necessarily come up short of absolute certainty, how can
    you tell when it’s time to quit? To answer this question
    when the time comes, it’s essential to develop a good sense
    of proportion and priorities.
    Here are some questions to answer as part of trying to
    conscientiously answer the big question, “Am I done?”
    • Have you logically answered the question you
    wanted answered when you began? To test your
    answer, ­buttonhole a friend, pose your question and
    then ­answer it on the basis of what your research
    ­disclosed. You will soon dis­cover whether your logic
    holds up.
    • Are the laws and facts in the cases you have
    found pertinent to the facts of your situation?
    To test your answer, decide whether the difference
    ­between the facts of your situation and the facts
    of any cases you’ve found (or those ad­dressed by
    the statute you’ve located) could possibly make a
    ­difference in the answer to your question.
    • Do the cases you found refer to (cite) each
    other? Cases cite other related cases as authority for
    their decisions. So each relevant case you find leads
    you to other cases. On any one issue, you’ll eventually
    develop a list of cited cases; when it ceases to “grow,”
    you’ll know you’re done.
    • Are the materials you’ve found to support your
    answer as up-to-date as you can get? Because law
    changes so rapidly, a case or statute that is only a year
    old may already be obsolete. You haven’t finished your
    research until you’ve checked all information to be
    sure it’s current.
    • Have you used all major research resources
    that might improve your understanding or
    make your answer more certain? If there are four
    different r­ esources that might bear on a tax problem
    (for e­ xample, books that interpret Internal Service
    
    	chapter 2: An Overview of Legal Research	
    
    ­Revenue regulations), it is wise to check all four rather
    than presuming any one to be correct or definitive.
    • Can you explain your reasoning in writing? If
    your ­research is reasonably complete, you should be
    able to express in writing the question you researched,
    your answer to it and the basis for your answer. It is
    common to think you’ve finished a research task, only
    to discover when you try to write it up that there are
    gaping holes. Chapter 11 suggests some guidelines
    
    17
    
    for putting your research results into ­written form,
    and the answers to the re­search ­problems in Chaper 11
    contain sample memoranda as e­ xamples.
    If your answer to all the questions posed above is a
    ­resounding or even a qualified “yes,” then you’ve probably
    done about as much as makes sense. If you feel, however,
    that any of these questions deserves an honest “no” or a
    waffling “maybe,” you have more work to do.
    
    18
    
    Legal Research
    
    Review
    Questions
    1. Where can law libraries be found?
    2. Give six examples of legal research.
    3. What is your most fervent hope when you begin a
    ­basic legal research task?
    4. What are the seven basic steps to legal research?
    5. What are some ways to know when you’re done with
    your research?
    Answers
    1. • Most federal, state and county courthouses.
    • Law schools.
    • Privately maintained law libraries (local bar
    ­associations, large law firms, state agencies and
    large corporations).
    2. • A police officer looks in her manual to decide
    what charges to hold a criminal suspect for.
    • A social security recipient calls up his regional office to ask about the agency’s eligibility policies.
    • Looking up a specific statute.
    • Reading a newly decided U.S. Supreme Court
    case.
    
    • Obtaining documents from a state or federal
    ­government.
    3. To find at least one case that perfectly—and
    favorably—answers your specific research question in
    an i­dentical factual context.
    4. • Formulate your research questions.
    • Categorize your research questions.
    • Find appropriate background resources.
    • Look for statutes.
    • Find a relevant case.
    • Use Shepard’s and Digests to find more cases.
    • Use Shepard’s to update your cases.
    5. • You have logically answered the question you
    wanted answered when you began.
    • The laws and facts in the cases you’ve found are
    ­pertinent to the particular facts of your situation.
    • The materials you’ve found to support your answers are as up-to-date as you can get.
    • You have utilized all major research resources that
    might improve your understanding or make your
    ­answer more certain.
    
    • Studying a new federal regulation published in the
    Federal Register.
    
    ●
    
    C H A P T E R
    
    3
    An Overview of the Law
    What Is the Law?.............................................................................................................. 20
    Foundations of American Law........................................................................................... 20
    The Increasing Importance of Statutes and Regulations..................................................... 21
    The Development of American Common Law.................................................................. 21
    Where Modern American Law Comes From..................................................................... 22
    About Going to Court....................................................................................................... 22
    How a Court Case Works: Steps in Litigation .............................................................. 23
    Appeals....................................................................................................................... 27
    Introduction to Reported Cases.................................................................................... 28
    Library Exercise: Using Citations to Find Cases........................................................ 29
    
    20
    
    Legal research
    
    What Is the Law?
    In this book, we generally think of “law” as the sum total
    of the rules governing individual and group behavior that
    are enforceable in court. Primarily, as you will see, this
    means state and federal statutes, agency regulations, local
    ­ordinances and published court decisions (cases). However,
    this is not the only possible definition of law.
    It’s important to view law in a more practical way,
    ­focusing not only on the law as it is written down in
    ­statutes and casebooks, but also on what happens in the real
    world. For example, if the Social Security Administration
    terminates the disability benefits of eligible recipients
    ­despite the repeated rulings of federal courts that such
    ­terminations violate federal law, the fact that the federal law
    exists appears of little value to the people affected. Similarly,
    if police and prosecutors are reluctant to p
    ­ rosecute certain
    types of crimes, such as those involving domestic violence,
    law as it exists in the community will be far different than
    what is written in the books. Finally, suppose a Supreme
    Court justice votes to reverse a murder conviction on the
    basis of previous court decisions. If the other eight vote to
    uphold the conviction, the “law” will appear vastly different
    to the one justice and the condemned person than to the
    eight-justice majority.
    At the very least, we recommend cross-checking
    ­information from library research with what goes on in
    the ­particular legal area on a day-to-day basis. Probably the
    best way is to check your conclusions with lawyers or other
    people familiar with local court, agency or police practices.
    Another important view of law is that our Constitution
    is ultimately subject to a higher law. Some people believe
    that this law exists in nature, called “natural law,” and
    ­applies to everyone whether they ascribe to it or not; others
    believe that ethics are many sets of rules developed by
    ­various philosophers over the ages and either chosen by
    or imposed on society. When Supreme Court nominees
    come before the Senate for confirmation, they usually are
    asked whether they believe that written law—constitution,
    ­statutes, cases—is all there is, or whether natural law should
    be used to “inform” or guide their interpre­tations of the
    Constitution.
    
    Changing the Law
    A number of groups who feel that the American legal
    system is no longer designed to produce justice are
    ­engaged in an effort to examine and replace many
    of the system’s legal underpinnings. This effort is not
    dealt with in this book. If you believe things should
    be d
    ­ ifferent than they are, and you find no support
    for your view in existing statutory or case law, you
    may wish to study some of the books you will find
    cataloged under the heading “jurisprudence” in
    any good-sized law l­ibrary. Legal reform, ethics,
    philosophy and religion are other likely headings.
    
    Foundations of American Law
    Because we draw our cultural heritage from so many
    ­different traditions, our legal system is a bit like a jigsaw
    puzzle. There are big pieces of English law (itself drawn
    from Norman, German, Saxon, Scandinavian and Roman
    societies) side by side with smaller bits from Spanish,
    French, Native American and ancient biblical sources.
    These have all been modified by our peculiar North
    American experience.
    Until the 12th century, law in the western world ­operated
    on several primary levels. Collections of written laws
    such as the Augustinian Code or the Code of Charlemagne
    (both traceable to Roman law) created a broad written
    legal framework. This basic system still p
    ­ revails in many
    countries (and in Louisiana in this c­ ountry) and is known
    as the “civil” law. In addition, the Catholic Church governed
    many activities under a large body of ecclesiastical law.
    Finally, all kinds of rules and regulations, many of which
    were never written down, were enforced by kings, local
    lords and courts, both ecclesiastical and secular.
    A legal tradition called the “common” law, quite ­different
    from that of the civil law, developed in England after the
    Norman conquest in 1066. At least since the reign of the
    great legal reformer Henry II in the 1100s, decisions by
    English grand juries, kings, magistrates and (slightly later)
    trial juries were written down and eventually c­ atalogued
    according to the type of case. When the courts were called
    on to decide similar issues in subsequent cases, they
    ­reviewed the earlier decisions and, if one was found that
    logically covered the contemporary case, they applied the
    principle of the earlier decision. This doctrine is called stare
    
    	chapter 3: An Overview of the Law	
    
    decisis—Latin for “let the decision stand.” The ­common
    law thus consists of court opinions in specific disputes that
    state legal principles and must be followed in subsequent
    court cases about the same type of dispute.
    This does not mean that every judge’s decisions stand
    forever. Courts reflect society’s values (however imperfectly),
    and old case law is rejected as society changes. But the
    principle of stare decisis is a strong one; judges are reluctant
    to discard well-established rules and take pains to explain
    (or deny) a significant departure from precedent.
    Large areas of law developed in England in this case-bycase common law tradition. Eventually, two basic types of
    courts evolved: the law courts and special “chancery” courts
    established by the king to handle types of cases and provide
    types of relief that tradition did not allow the regular courts
    to entertain. The principles developed in the law courts were
    called “legal” or “law,” while the principles developed in the
    king’s chancery courts were called ­“equitable” or “equity.” This
    distinction still exists in modern American law, although now
    there are not usually two separate kinds of courts.
    England also, beginning hesitantly with the Magna Carta
    in 1215, developed a parliamentary system under which
    statutes proposed by the king or his ministers were enacted
    by Parliament. These statutes were gathered together into
    books not too different from today’s civil law codes.
    During America’s colonial period, most of the English
    common law tradition and many of the English statutes
    became firmly entrenched, though modified to some e­ xtent
    in accordance with the religious and cultural beliefs of
    the colonists. At independence, the basic legal system did
    not change. For the most part, the new country simply
    continued to follow English law.
    There was, of course, one big difference. The U.S.
    ­Constitution was ratified in 1789, and neither the laws
    of Parliament nor the edicts of King George III had any
    ­further power in the new United States. The Constitution
    became the foundation on which our legal house was built.
    Both the law inherited from England and that enacted by
    Congress and state legislatures eventually had to either find
    support in this foundation or be discarded.
    
    The Increasing Importance of
    Statutes and Regulations
    In the 200-plus years of American history, the English
    common law (case-by-case) tradition has been modified.
    Statutes and administrative regulations have become more
    
    21
    
    important, both to make new law and codify (put into a
    written, prescriptive form) broad principles developed by
    the case law. Especially since the New Deal of the 1930s,
    federal and state agencies have been created at a rapid rate.
    Most of these agencies have the authority, within certain
    prescribed limits, to make rules that have the force of
    ­statutes passed by Congress and state legislatures. Many of
    them also have the power to judge disputes that arise ­under
    these rules. For example, Congress passed a statute—the
    Social Security Act of 1935—that created the Social
    Security Administration (SSA). The Social Security Act
    also authorizes the SSA to write rules and to set up its own
    forums to decide disputes arising under the rules.
    
    The Development of
    American Common Law
    Despite the increasing importance of statutes and regulations,
    many areas of our law still consist almost entirely of court
    decisions—but now by American courts. Also, the courts
    of this country are empowered to interpret statutes when
    a dispute arises as to their meaning. As well as using other
    interpretative techniques, a judge will look at earlier cases
    to see how they have interpreted the statute and will apply
    the prevailing interpretation unless she feels it is wrong
    or clearly doesn’t apply to the current dispute. In other
    words, court opinions in America, as in England, serve as
    authority or “precedent,” which is often binding and ­always
    important to subsequent court decisions.
    As a practical matter, the only court opinions that
    become part of the American common law are those
    that are contained in recognized publications known as
    “reports” or “reporters.” In most state court systems, the
    only court opinions that are published in this way are those
    issued by appellate courts—that is, courts that deal solely
    with legal issues on appeal from trial courts. In the federal
    court system, all appellate court decisions are published
    and many trial court decisions make it into print as well.
    The higher the court, the more likely it is that the decision
    will serve as precedent for other courts. For example, a
    decision by a U.S. District Court judge will carry far less
    precedent weight than will a U.S. Supreme Court case or
    Circuit Court of Appeal case on the same issue.
    So far we have talked about the United States of America
    as if it were one political unit. For many reasons, it
    often seems that this is true. However, it is important to
    ­remember that we have a federal system under which 50
    
    22
    
    Legal research
    
    sovereign political states have banded together voluntarily
    and agreed to give the federal government certain powers
    spelled out in the U.S. Constitution. All powers not
    ­expressly granted to the federal government are reserved to
    the states. The states in turn have divvied up some of their
    power among counties, cities and special districts.
    
    Where Modern American Law
    Comes From
    Laws are made at three basic levels: federal, state and local.
    Operating at each of these levels are three sources of law:
    legislatures, judges and executive officers (usually acting
    through government agencies). See the list set out below.
    The next chapter provides some tips on deciding which
    source of law controls your issue.
    
    Sources of Law
    • The U.S. and state constitutions and cases that
    ­interpret them produce constitutional law.
    • Congress passes laws called “statutes,” which
    ­constitute federal statutory law.
    • Federal courts decide cases and write opinions that
    constitute federal case law.
    • Federal courts decide cases and write opinions
    about state statutes when the parties before the court
    are from different states.
    • Federal administrative agencies created by Congress
    and staffed by the executive branch issue regulations
    that constitute the federal administrative law.
    • Sovereign Native American tribes have their own
    courts and laws, which constitute tribal law.
    • State legislatures pass statutes, which constitute state
    statutory law.
    • State courts decide state cases and write opinions,
    which constitute state case law.
    • State administrative agencies (created by state
    ­legislatures and staffed by governors’ office
    ­appointees) write regulations, which constitute state
    administrative law.
    • Local governments pass ordinances that become
    ­police codes, building codes, planning codes,
    health codes, etc.
    
    About Going to Court
    When someone new to the law, whether law student,
    ­paralegal or citizen interested in her own case, thinks of
    “going to court,” the images that come to mind are often
    movie-like scenes with argumentative attorneys, stern
    judges, and courtrooms filled with spectators and the press.
    The complexity of it all can seem too much to deal with. As
    one judge put it:
    The lay litigant enters a temple of mysteries whose
    ­ceremonies are dark, complex and unfathomable. Pre­trial
    procedures are the cabalistic rituals of the lawyers and judges
    who serve as priests and high priests. The layman knows
    nothing of their tactical significance. He knows only that his
    case r­ emains in limbo while the priests and high priests chant
    their lengthy and arcane pretrial rites (Daley v. County of
    Butte, 227 Cal. App. 2d 380, 392 (1964)).
    In fact, the great majority of court matters are handled in
    a quite straightforward manner, without fanfare, ­argument
    or stress. Typical are cases that ask a judge to a­ ppoint a
    guardian or conservator, approve an adoption or name
    change, allow the probate of a simple estate, grant an
    uncontested divorce, discharge certain debts in bankruptcy,
    or seal a criminal record. On the other hand, criminal cases
    are usually no picnic, and any case can get messy when a
    real dispute exists or lawyers have a financial incentive to
    string the matter out, as can often happen in complicated
    business disputes for which attorneys bill by the hour.
    But whatever the matter, filing a case and pushing
    it through court always involves carefully following a
    ­number of technical court rules. The trick is knowing
    these procedural rules in minute detail. Among the highest
    compliments a lawyer can be paid is, “She sure knows her
    way around the courthouse”—that is, she has ­mastered the
    rules of the game. Fortunately, these rules are, for the most
    part, available to all.
    For example, suppose you want court protection against
    someone in your household who is abusing you. You must
    understand not only the law that governs such a situation
    (what protection is available), but also the actual steps
    that you must follow to get your request properly before a
    judge. You may have the best case in the world, but a lack
    of knowledge about court procedures will prevent anyone
    from hearing it.
    
    	chapter 3: An Overview of the Law	23
    
    Small Claims Court
    All states have a small claims court or procedure
    with simplified rules that are usually fairly easy to
    follow. Small claims court clerks are usually required
    by ­statute to help people with all procedural details.
    If you can squeeze the amount of your ­monetary
    claim within the small claim limits for your state (usually from $2,000 to $5,000), you may find that small
    claims court is an excellent alter­native to the formal
    legal ­system. One of the nicest aspects of small
    claims court is that in many states, litigants are not
    allowed to be represented by lawyers. By learning to
    do your own research and writing, you can present a
    
    the court is being asked to resolve. It looks at how a typical
    contested case develops and proceeds through the courts.
    The Pretrial Process
    The first phase of a contested civil case is called the pretrial
    phase.
    The plaintiff files a complaint
    
    A case begins when a document called a “complaint” is filed
    with the court by the plaintiff (the party who sues).
    The Complaint. This document tells what happened and
    what the plaintiff wants done about it—that is, a monetary
    award, court ­order or other remedy. It also tells the court
    the legal basis for the litigation.
    
    solid case and not run the risk of being overwhelmed
    
    The defendant responds
    
    by an experienced hired gun on the other side. Un-
    
    The defendant (the party who is sued) is served with
    (given) a copy of the complaint and has a certain time
    to ­respond in writing—usually 30 days. If no response
    is made, a “default” judgment may be obtained by the
    ­plaintiff, which means the plaintiff wins without having to
    fully prove the case.
    There are a variety of ways the defendant may respond.
    The plaintiff ’s complaint and the defendant’s ­responsive
    papers, taken together, are commonly referred to as the
    ­“pleadings” in the case.
    The Answer. Most commonly, the defendant files an
    “answer,” a statement setting out which parts of the
    complaint the defendant agrees and disagrees with.
    Under the procedural rules of most states, the defendant’s
    answer must also contain any affirmative defenses (factual
    statements of the reasons or excuses for the defendant’s
    ­actions) and counterclaims (claims that the plaintiff in
    fact owes the ­defendant money) that the defendant has.
    The defendant can also state that she doesn’t have enough
    information about the allegations and denies the complaint
    on that basis.
    Motion to Dismiss for Failure to State a Claim. This
    document—also called a “demurrer” in some states—asks
    the court to dismiss the suit instead of requiring an answer
    from the defendant. Usually, the basis for this request boils
    down to this: Even if the facts in the plaintiff ’s complaint
    are true, so what? Or to put the same thing a little more
    formally, the defendant is saying that the plaintiff has no
    legal theory (given the facts as the plaintiff has alleged
    them) upon which to properly base a lawsuit. The ­defen­dant
    is requesting the court to stop the plaintiff from wasting
    everyone’s time and to end the matter then and there.
    
    fortunately, most small claims courts are not designed
    to handle ­problems other than those where one person
    has a monetary claim against the other. (For more
    ­information, see Everybody’s Guide to Small Claims
    Court, by Ralph Warner (National and California
    ­editions, Nolo).)
    
    This Is Not a Practice Guide. This section talks in
    general terms about the steps in civil litigation, and it
    is not intended as a guide for the aspiring lawyer or paralegal,
    or for the reader who intends to represent herself in court. To
    find out in more detail about civil and criminal procedure,
    start with a good background resource (as discussed in
    Chapter 5). You can get information about how to represent
    yourself in a civil court proceeding in Represent Yourself in
    Court, by Paul Bergman and Sara J. Berman-Barrett (Nolo).
    
    How a Court Case Works: Steps in Litigation
    Court procedures and rules are substantially similar in all
    state and federal courts. Details vary, however, and similar
    procedures are often referred to by different names. For
    example, an eviction action is called “unlawful detainer” in
    California and “summary process” in Massachusetts. Yet the
    proceedings are basically the same.
    If your case is uncontested—that is, there’s no dispute
    and it’s simply a matter of getting the papers right—a lot
    of this section won’t apply. The discussion here is intended
    primarily for people who are involved in a civil dispute that
    
    24
    
    Legal research
    
    The court does not decide any facts as part of a hearing
    on a motion to dismiss. Strictly for the purpose of deciding
    the motion, the judge assumes that the factual allegations
    in the complaint are true and then decides whether the
    law supports the claim for relief. If the judge grants the
    ­motion but allows the plaintiff a chance to fix the problem
    (“granted with leave to amend”), the plaintiff simply
    ­rewrites the complaint and the process starts all over again.
    If the judge grants the motion without leave to amend,
    the case is ended unless the plaintiff appeals the decision.
    On the other hand, if the judge overrules (denies) the
    demurrer, the defendant must file an answer. The defendant
    can ask the appellate court to review the denial (called
    asking for a “writ of mandamus”), but this remedy is rarely
    granted.
    Both sides engage in discovery
    
    From the time that the pleadings in a case are filed (and
    rarely, before), each party has the right to engage in an
    ­activity termed “discovery.” Discovery involves a number
    of specific procedures by which the parties seek information
    from each other both to bolster their own cases and to
    ­prevent Perry Mason-type surprises at trial.
    Discovery often adds considerably to the time and
    ­expense of litigation. Because each side usually attempts to
    avoid giving information to the other, disputes constantly
    arise over what information must be turned over. These
    disputes are resolved by the trial court in “discovery
    ­motion” proceedings. If a party does not like the result, it is
    usually possible to take the matter to a higher court ­before
    the underlying case proceeds further. Accordingly, discovery
    often results in cases going into a holding pattern.
    Normally, discovery consists of the following devices:
    Depositions. Witnesses or parties are required to go to the
    office of one of the attorneys and answer questions, under
    oath, about their knowledge of the dispute. The ­testimony
    is taken down by a stenographer or, increasingly, by a tape
    recorder. Usually the attorney for the side of the case on
    which the witness will testify is also present.
    Interrogatories. One party sends another written
    ­questions to be answered under oath by a certain date.
    ­Interrogatories are also used to ask the other party to
    ­identify the source and validity of documents that may be
    introduced as evidence at trial.
    Admissions of Facts. Factual statements are set out that
    the other side must admit or deny. Anything that isn’t
    ­denied is considered admitted.
    
    Production of Documents. One party asks another to
    
    produce specified documents. In a complicated case, one
    side may ask the other for file cabinets full of material.
    There are often motions (arguments heard by a judge)
    about how much fishing one side can do in the other’s
    records.
    Summary judgment is requested
    
    Once the pleadings are on file, either side may ask the
    court to rule in their favor without trial. To get a summary
    judgment, the party must show the absence of a dispute
    about any important facts in the case (called “triable issues
    of material fact”). This showing is made in the form of
    written statements under oath, termed “declarations” or
    “affidavits.” Trials serve to determine facts, so if there are no
    disputed facts, there’s no reason to have a trial. The judge
    can go ahead and apply the relevant law to the undisputed
    facts.
    
    Different Sides of the Coin:
    The Difference Between a
    Demurrer and Summary Judgment
    A demurrer and a motion for summary judgment are
    both motions that may be made by the defense in an
    attempt to get rid of the case before it goes further.
    (The plaintiff may also move for summary judgment,
    in an attempt to secure a quick victory without the
    ­expense of a trial.) A demurrer argues to the judge,
    “All the factual claims are true, but there’s no legal
    issue here”; a motion for summary judgment says, “In
    spite of the claims, there’s no real factual dispute that
    would merit a full trial.” In federal court, a demurrer
    is brought as a motion to dismiss.
    
    Example 1: Peter is a woodworker who lives on United
    States government land (a federal Air Force base) and
    sells wooden toys to the toy store on the base. His
    ­written agreement with the store specifies the price the
    store will pay for each toy, when Peter is to deliver the
    toys, and what materials he is to use. The contract says
    nothing about the store buying a minimum number of
    toys each month. Peter has increased his production and
    would like the store to buy his entire line, and he sues
    them in federal court for breach of contract when they
    refuse. The toy store files a motion to dismiss, pointing
    
    	chapter 3: An Overview of the Law	
    
    out that since the contract does not have an “output”
    clause, they cannot legally be forced to buy all of Peter’s
    toys.
    Example 2: Peter’s sales to the toy store continue and
    one of his toys, a rocking horse, is sold to a family with a
    two-year-old. The child develops a rash that the p
    ­ arents
    believe is caused by the finish on the rocking horse.
    Peter discovers that all of the children in the youngster’s
    day care center on the base have identical rashes, which
    have been traced to the use of a harsh cleanser on the
    center’s furniture. Armed with an a­ ffidavit from the
    center’s director, Peter moves for summary judgment.
    The parents are unable to offer ­factual support for their
    theory that the toy’s finish caused the rash, so the court
    grants Peter’s motion.
    One or more sides files motions
    
    At any time after the pleadings have been filed, but before
    trial, the plaintiff or defendant may ask the court to order
    the other side to do something or to refrain from doing
    something. Sometimes these requests, called motions,
    are used to preserve the status quo until the case can
    come to trial. For example, if the circumstances are truly
    urgent, a party can request the court to issue a “temporary
    restraining order” (TRO) or “preliminary injunction,”
    stopping the defendant from taking some action before
    trial. As mentioned, motions may also be filed to enforce
    discovery (that is, to require a party to answer questions
    or produce documents when appropriate) or to protect
    a party against abusive discovery (for example, requiring
    attendance at a week-long deposition).
    One side requests a trial date
    
    In some court systems, a case is never set for trial unless
    one of the parties requests it. Accordingly, a party who feels
    adequately prepared can file a document with the court
    requesting a trial and specifying whether it should be held
    in front of a jury. These documents are titled differently in
    different courts, such as “memorandum to set,” “at-issue
    memorandum” and “motion to set for trial.” Whatever their
    titles, they may be opposed by the other party (for a variety
    of reasons) or agreed to.
    
    25
    
    are in the case and gets an idea of how long the trial will
    take. Many judges use these conferences—often quite
    successfully—to pressure the parties to settle the case. If no
    settlement is reached, the trial date is fixed.
    The Trial
    Most lawsuits never go to trial. The parties settle their
    ­dispute or simply drop the case. Often, the outcome of a
    pretrial motion resolves the case or encourages one of the
    parties to settle. If a case does go to trial, it’s usually ­because
    the parties disagree so much about the underlying facts that
    they need a judge to decide whose version is ­correct.
    Trials involve a set of rituals that are supposed to ferret
    out the truth. No one trial is like any other—each is a
    function of who the parties are, what type of legal issues
    are involved, the personalities of the attorneys and the
    ­demeanor of the judge. But the biggest determinant of what
    happens in a trial is whether it is a trial by jury or a trial
    by judge. Many of the rules governing trial procedure are
    aimed at producing an impartial jury and making sure that
    the jury doesn’t receive evidence that is unreliable in some
    fundamental way. Judges, on the other hand, are ­presumed
    to be able to act impartially and tell reliable ­evidence from
    unreliable evidence.
    Jury trials
    
    Jury trials begin with the selection of the jury. The judge
    and lawyers for both sides question potential jurors about
    their knowledge of the case and possible biases relating
    to their clients and the important issues in the case. This
    ­process is called voir dire.
    
    Motions in Limine
    From the first moment of the trial to the last, one or
    both parties may want the judge