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Legal Research and Writing
South Texas College of Law Houston
Rutledge, Njeri Mathis

LRW I – Professor Njeri Mathis Rutledge – Fall 2014 – STCL
·         Sources of Law: Primary Authority
o   Federal
§  The Constitution of the United States
§  Federal Statutes
§  Federal Administrative Regulations and Decisions
§  Federal Court Decisions
o   State
§  State Constitutions
§  State Statutes
§  State Administrative Regulations and Decisions
§  State Court Decisions
o   American Common Law
§  Judge-made law
§  Follow rules courts made in the past
·         Role of lawyers
o   Make predictions
§  What will happen?
§  Am I going to jail?
§  Can I sue?
§  Do I have a case?
§  What will be the result?
§  Will I be found guilty?
§  Were my rights violated?
§  Am I liable?
o   Advise clients
·         Legal System requires
o   Predictability
o   Consistency
o   Guidance for the future
·         Stare Decisis
o   Latin
o   “To stand by precedents and not disturb settled points”
o   Legal doctrine for when judicial opinions operate as law, just like statutes operate as law
o   Pursuant to stare decisis, a court’s past decision is recognized as precedent.
·         Before you can make a persuasive argument, you must first:
o   Know the law
o   Look at the legal rules and issues raised objectively
o   Consider arguments and counter arguments
·         Three types of facts
o   Essential or determinative
§  Outcome determinative facts
§  The facts that are essential to the controversy
§  Test: if a change in a fact would cause the court to reach a different decision it is determinative
o   Explanatory
§  Useful facts
§  These facts help the story make sense
o   Coincidental
§  Facts that just happened
§  They have no relevance or usefulness
§  Should be omitted from memos, briefs, and examinations
·         Which facts matter?
o   Look for the determinative or essential facts
§  Facts that will determine the outcome in a case
o   The essential facts and the elements in a case are dependent on each other
§  So, knowing the essential facts depends on knowing the elements of the claim and vice versa
·         In addition to the facts, you need the law
o   The law helps identify essential facts
·         The elements
o   All claims have distinct requirements
§  Some based on enacted law
§  Some based on common law
o   Break down the requirements, and analyze each separately
·         Common Law Elements
o   The tort of IIED has four elements:
1.       The D must act intentionally or recklessly;
2.       The D’s conduct must be extreme and outrageous; and
3.       The conduct must be the case
4.       Of several emotional distress
·         Relationship between elements in a mandatory rule
o   AND: each element must be satisfied
o   OR: either one of two or more elements may satisfy the statute
·         Mandatory vs. Discretionary Rules
o   Mandatory language: if elements are met, compels a certain result
o   SHALL: Usually Mandatory
o   SHALL NOT: Usually Prohibitory
o   Discretionary Rules
§  Court MAY consider the following factors
·         Finding the Elements/Outlining Statutes
o   Break each component of the statute into smaller separate parts
o   Outlining a statute and identifying the elements will assist in your legal writing and analysis
o   Or. Rev. Stat. § 163.212(1)
§  A person commits the crime of unlawful use of an electrical stun gun, tear gas or mace in the second degree if the person recklessly discharges an electrical stun gun, tear gas weapon, mace, tear gas, pepper mace or any similar deleterious agent against another person.
§  Outline
1.       Recklessly
2.       Discharges
3.       One of the following:
a.       Electrical stun gun, OR
b.       Tear gas weapon, OR
c.       Mace, OR
d.       Tear gas, OR
e.       Pepper mace, OR
f.        Any deleterious agent
4.       Against another person
o   Benefits of an elements list
§  Defines the issue
§  Outlines the law for written analysis
§  Can use for statutory or common law claims
·         Factors
o   Factors are flexible considerations,
o   A court may base its decision on the existence of a single or multiple
·         Factors vs. Elements
o   Elements are required to establish a cause of action
§  A cause of action that is missing an element will fail
o   Factors are flexible considerations a court may consider
§  An element with 5 factors can be satisfied if only one is present             
·         Elements + facts = your legal issue(s)
·         Case law
o   Cases serve as an example of how the law applied in the past
§  Illustration
§  Give broad rules of law greater definition or meaning
·         IIED
o   Factors for extreme and outrageous
§  2nd element for IIED – (2) the D’s conduct must be extreme and outrageous
§  Factors the court considers include
·         Existence of a fiduciary duty
·         Whether the person was in a position of power
·         Whether the D was particularly vulnerable
·         Statutes
o   Defined – written law enacted by a legislature
o   Both federal and state statutes
o   Local statutes from city or county government – ordinances
·         Organization of a Statute
o   Title – Statutes name or section number
o   Definitions – statutory terms of art
o   General rule – must

such, ordinary terms should be given their ordinary meaning
·         Modifying words or phrases modify the prior word closest to the modifier
o   All dogs and cats that are black would mean all dogs and all black cats
·         In Pari Materia – statutes on the same subject matter should be read together
o   Same person, thing, common purpose
o   Ejusdem generis – of the same class. Used in statutes with catchall phrases
§  Ex. No one may transport vegetables, dairy, fruit or other products without a certificate of conveyance. A court may interpret other products to be limited to food products
o   Expressio unius, exclusion alterius – expression of one thing excludes another
§  If a statute expressly lists what is included, it is thought to exclude that which is not mentioned
§  Ex. Text mentions black cats and white cats it probably does not apply to gray cats
o   6. Legislative purpose/intent
§  Look at legislative history
§  Legislative history – paper trail of the legislative process
·         Committee reports, debate transcripts, speeches, witness testimony, studies
·         Considered more relevant on the federal level (and easier to locate)
·         Challenging, many statements may be based on political compromise
·         Judges and scholars criticize reliance upon
·         Difficult to research
·         Binding precedent
o   Same jurisdiction
o   Higher court
·         Remember the general principle of stare decisis and binding precedent
·         CREAC
o   Conclusion
o   Rule
o   Explanation: precedent
o   Analysis/Application: put it together
o   Conclusion
·         Issue – Defining involves looking at the elements systematically
·         Rule – looking for binding precedent – the holding, not dicta (persuasive precedent not binding)
·         Facts – finding the essential
·         Analysis – applying the law to your case
·         Analyzing cases
o   How have courts applied the rule to analogous fact patterns
o   Almost never identical
o   Essential skill: allows us to predict whether precedent controls our client’s situation