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Legal Research and Writing
South Texas College of Law Houston
Sparling, Tobin Andrews

LEGAL RESEARCH AND WRITING

SPARLING

2012

I. Duties of a Lawyer

A. Duties:

1. Advise clients

2. Represent clients & advocate on their behalf

3. Draft pleadings

4. Draft briefs in support of pleadings

5. Draft documents (wills, contracts, etc.)

6. Negotiate

7. Try cases

8. Settle cases

9. Mediate disputes

B. Involves:

1. Knowledge of the law

2. Communicating what the lawyer knows to some third party

C. Knowledge of the law

1. To know the law, be able to find the law

a. Experience doesn’t matter

i. The law changes all the time

ii. You are always going to run into new situations & areas of the law

iii. The courts & other attorneys require you back up your statements w/ citations

2. Critical to develop research skills

a. do so early on, bc it’s you will be judged as a jr. attorney on your research skills

D. Communicating

1. Oral

2. Written: Categories of legal writing

a. Predictive

b. Persuasive

c. Expository

E. Most attorneys learn LRW by trial & error

F. Goals of LRWI:

1. To help you approach & analyze fact situations w/in the context of the law— to “think like a lawyer”

2. To share a systematic approach to legal research— a way of thinking in general terms about the sources of law & how those sources are organized

a. W/ this organizational framework, you will be able to research the law of any jurisdiction, even if you don’t know the exact names of the relevant lawmaking bodies or the legal reference sources pertaining to that jurisdiction. What you will have is a general idea of the types of law that would typically apply in a situation like yours; & you’ll know those types of law are organized in certain generic kinds of legal reference sources that exist in almost every jurisdiction. That should be enough for you to go on.

3. Intro to the basic formats of legal writing— the legal memo & tips to make you an effective legal writer.

8/19 Intro to fact gathering & analysis; overview of LRW Strategies

I. Intro to Research & Analysis

A. Intro to fact gathering

1. The human element is central to the practice of law

a. Even if you’re representing corporations or government entities: personalities, human emotions & human foibles are at the crux of the matter at h&

b. As attorneys, never forget we have a tremendous affect upon the lives of our clients & others.

c. Model Rules of Professional Conduct Rule 1.1:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness & preparation reasonably necessary for the representation.

2. Your involvement in legal representation will typically begin w/ a story.

a. In law school, it’s in the form of a fact pattern.

b. In practice, not a neat fact package. Your job will be to elicit a client’s story or a supervising attorney will brief you.

c. Steps to follow:

i. Take notes.

ii. Ask questions

iii. If anything is said that you don’t understand, seek clarification

iv. Get the applicable facts straight: who, what, where, when, how

v. If you are asked to research an issue of law in the abstract, ask whether there are any facts that might have a particular bearing

vi. What’s the due date?— be up front about problems you have in meeting the due date.

vii. Ascertain the parameters of the research expected, i.e, hours or days?

viii. What should the end product be: oral report, letter, memorandum of law, brief, outline or what?

ix. Client/matter number

EX: Costa Cruise Line Client Number 34 Matter Number .1 à 34.1

– Used for billing, copy machine, etc

x. When you leave the attorney’s office:

(a) Immediately Read your notes

(b) Add any info you didn’t jot down

(c) Make sure your notes are in a format that you can decipher

B. Intro to Fact Analysis

1. Natural tendency is to run “like a chicken w/ its head cut off” & immediately try to go find the answer. THIS IS A BAD APPROACH!

2. Think before you act & develop a plan of attack/research strategy

a. Analyze facts

b. Prepare a list of key search words:

– Parties

– Places, objects, things

– Issues or acts involved

– Defenses

– Relief

– Procedural posture

c. Identify issues: the legal issues raised by a fact situation constitute the questions to answer w/ your research & thus the framework for research

Note about use of secondary authority: statements about the law (not the law itself); used to explain, interpret, develop, locate or update primary authorities–

Encyclopedias

Treatises

Law review articles

Restatements

ALR’s

Looseleaf services

d. Consider what the source of applicable law might be

What jurisdiction?

What level of authority?: international, federal, state?

What types of legal authority (law w/in those levels of authority)?

Constitutions

Statutes à Annotated Code (gen. index, popular names table,

annotations)

Administrative rule or regulation à Admin Code (gen index) à List of

parts affected (tells you if there’s been revisions)

Case law à Digest (descriptive word index) à Reporter

Lexis/Westlaw à Digest system, shephards/keycite

Combination of the above

C. Finding the law

1. Probable source of the law à what reference tools? Choose the tool to meet your need.

Best: Secondary Authority is the best place to begin, usually

If you’re short on time à May look for primary authority

2. Plan your approach (even if you modify it as you discover new information during research, you’ll be more successful & efficient if you have an idea of the steps you wish to take)

3. Take complete & accurate notes, record:

a. Source & citation

b. Topics, search words used

c. Content of source

d. Relevant cross-references which you want to follow up

4. Copy Online source material immediately

5. Continually evaluate what you find in terms of the facts of the problem you are researching.

D. Updating the law

– Shepardize/Keycite, check pocket parts, check advance sheets of reporters, check currency of online sources, use Lexis/Westlaw automatic notifications

E. Stop researching, start writing when…

1. You find the same authorities over & over & no longer find new, relevant ones

2. You have evaluated the materials in terms of facts & issues of problem

II. Intro to Memo Writing

A. Purpose of predictive writing: To predict how a court will rule

B. The office memorandum: Written in response to client request whether a lawsuit worth commencing

– Used again to draft complaint

– Might be consulted pretrial, during trial, on appeal

– Could be consulted long after the case has been resolved in a similar case fact/law situation

C. 4 stages of writing

1. Analyze the issues & raw materials (facts, law, public policy)

2. Develop positions for each side on every issue

– Why should your client win?

– Why should the other side win?

– Evaluate each set of arguments to see if it will persuade a judge

– Is one set more persuasive; how do you think the court would rule?

– Consider the case as a whole; how will the court decide the entire controversy?

3. Organize your materials so they can be written about

4. Produce a first draft.

5. Successive revisions until the finished product

D. Basic memo organization

1. Memo heading: Identifies the writer, the intended recipient, supplies the date & subject covered)

2. Issue(s): States the question(s) that the memo resolves; itemizes the few facts you predict to be crucial to the answer

3. Brief Answer: States the writer’s prediction & summarizes concisely why it is likely to happen

4. Facts: Set out the facts on which the prediction is based

5. Discussion: Proves the conclusion set out in the brief answer

6. Conclusion: Summarizes the discussion in a bit more detail than the brief answer does

7. Signature Appears under the typed words “Respectfully submitted”

Statutes : Sources of law; legislatures & statutory law

A. Intro

1. Statutes to mind first when people think of “the law”– “the law is on the books”

2. Statutes are the work product of legislatures

3. Hierarchical organization of legislatures in this country operates at different levels:

a. Federal (US Congress)

b. State

c. County

d. Municipal

B. Legislative Process

1. Can’t talk about statutes w/out mentioning the legislative process (procedures according to which laws come into being)

a. Legislative process has much to do w/ the unique quality of statutory law.

b. Legislative process shapes, to a large extent, how we, as attorneys, go about finding & interpreting statutory law.

2. Political process

a. Candidate runs for office on some sort of platform & is elected for a fixed legislative term.

b. The legislatures to which members are elected are numbered; & the periods during which the legislature sits are called sessions.

1) Congress: Current Congress is the _th Congress; & it has 2 sessions.

2) TX legislature meets every other year; it generally has 1 session, although special sessions are called when business warrants.

c. Ideas for proposed legislation come from many sources: legislators, the executive branch, members of the public (lobbyists & individual constituents), political parties & the media.

d. Ideas à a “bill”– a p

hem if they didn’t.

7. Stare decisis: (“let stand that which has been decided) Principle that past decisions are generally binding for the disposition of factually similar present controversies. Established as a policy of English law.

8. Implication of stare decisis is that common law is both product & process—

a. Rules courts have laid down in past decisions

b. Ways in which courts draw on this past recorded experience as a source of guidance in decision-making & which attorneys draw on this past experience as a source of guidance for future action.

9. Common law is not static

a. Past judicial opinion is generally only binding in future cases involving the same material fact. If the later case involves what the court considers materially different facts from those involved in the past case, the earlier adjudication is not controlling. The new case is said to be “distinguishable on its facts”

b. If the published judicial opinion in the earlier case contains language that wasn’t necessary to the decision of the factual controversy then before the court, that language is not authoritative in a stare decisis sense; it is a mere dictum, something “said by the way” & can, if the court now chooses, be disregarded.

c. Prior decisions can be overruled

10. In the common law process, knowledge of the facts— both in your own controversy & in the reported cases of the past— is of paramount importance. Must be sensitive to factual similarities & dissimilarities of the cases.

C. Levels of judicial review; mandatory & persuasive authority

1. All courts are not equal in terms authority of their precedents

2. Authority: that which can bind or influence a court

a. Mandatory authority: Court is bound to follow: Constitutional provisions, legislation, & some cases.

b. Persuasive authority: law or reasoning not bound to follow

3. Precedential authority determined by:

a. Jurisdiction: decisions from one jurisdiction not binding in another, maybe persuasive.

i. (Geography) Oklahoma oil & gas decision in a TX court would be persuasive.

ii. (Federal system of gov’t) Federal court ruling on a question of state law is merely persuasive

b. Structure of the court system: on the federal level & in the states there are hierarchical judicial systems in which some courts have jurisdiction, or control, over other courts.

i. Typical court structure consists of 3 levels:

(a) Trial Courts

(1) Make determinations of law & fact, w/ juries often making the determinations of fact.

(2) Documents prepared by the parties called pleadings (complaint/petition, answer, interrogatories) & motions filed before, during & after a trial.

(3) ∏ must present evidence to prove facts that substantiate each element of a cause of action.

(4) Trial courts decide what facts in a dispute are & apply them to the law

(5) Resolve the dispute under the law: guilty/not guilty, liable/not liable

(6) Trial court ruling will be binding only in future cases w/in that trial court

(b) Intermediate appellate courts

(1) Authority over trial courts in a specific area or jurisdiction.

(2) Hear appeals: appeal is a request by the losing party for a higher court to alter one + rulings by the trial court.

(3) Do not generally review factual determinations made by the trial courts.

(4) Review to see that the trial judge correctly applied the relevant points of law to the facts determined at the trial level.

(5) Generally provide a guaranteed appeal by right.

(6) Rulings will have mandatory authority in trial courts w/in the geographical jurisdiction of the intermediate appellate court & in the particular intermediate appellate court itself.

(c) Final appellate court (court of last resort)

(1) Final arbiter of the law

(2) Usually review is discretionary.

(3) Decisions of law binding upon lower courts in judicial hierarchy & the court itself.