Gilbert Law Summary on Legal Research, Writing & Analysis
Authors:
Honigsberg, Peter Jan / Ho, Edith
Edition:
13th
Copyright Date:
2019
23 chapters
have results for gilbert law legal research
Chapter One. Definitions 1 13 results (showing 5 best matches)
- When learning a new discipline, you must familiarize yourself with its particular terms, its jargon. Law is no exception. The profession has created a set of words and phrases which frequently mystify the layperson and the first-year law student. In this chapter we will explain a few of the basic terms with which you must be familiar if you are going to do legal research. Terms applicable to the material in this book will be defined in context. For other legal terms, you can refer to various law dictionaries, such as
- If a landlord refuses to repair the falling plaster from the ceiling, he is violating the substantive law. So is the doctor who refuses to release a patient who says she wishes to leave the hospital, or the storeowner who “baits” by an advertisement and then “switches” by offering a more expensive item when the customer is in the store.
- “Common law” has two definitions. One refers to the law—the court decisions and customs—of England at the time of the American Revolution. When we became a nation, we adopted English common law, including its parliamentary acts, and recognized it as part of our own organic law. The other definition of common law is the collection of court decisions—in contrast to statutory law, the acts passed by the legislatures.
- If one party is dissatisfied with the judgment in the trial court, she can appeal. But the person appeals on “questions of law,” not questions of fact. The appellant claims that the judge erred in applying certain points of law during the trial. The appellant does not challenge the findings of the jury; she only asks the appeals court to review the trial judge’s application of the law. (There appears to be an exception—although it, too, is actually a question of law. An appeal can be brought on the ground that no jury could have rationally reached the verdict this jury did; that is, there was not enough evidence to support the verdict.)
- Equity dates back to the old equity courts of England, which provided remedies that were not available in the rigid common law courts. Equity courts were considered the courts of fairness, of justness. In the United States, courts of equity were integrated with the regular law courts. Judges thus can provide remedies of both law and equity. When courts speak of “equitable relief,” they are referring to such court remedies as injunctions (stopping someone from doing, or requiring someone to do, some act), equitable rescission of a contract (annulling a contract and returning the parties to their positions before they entered into the contract), and similar means of relief that were not provided by the common law courts in England.
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Introduction and Approach xiii 7 results (showing 5 best matches)
- This book was designed in recognition of the growing concern among law schools for teaching legal research, writing, and analysis skills. The first part of the book covers the basic legal research skills. It focuses on how to research primary sources such as cases, statutes, and regulations; on how legal encyclopedias, digests, looseleaf materials, form books, law reviews, treatises, and other secondary sources are used; and on how to Shepardize or KeyCite a case. Then it expands on the use of computers and the Internet in researching both primary and secondary legal sources.
- In reassessing their law school curricula, many law faculties have upgraded their legal research and legal writing classes by adding more serious writing exercises and offering more oral presentation programs. Many of these courses are now given equal unit weight with such basic building blocks as contracts and torts.
- We trust that you will find this book a useful contribution to your understanding and development of basic legal research and legal writing skills.
- However, in the past decade, law school administrators have been reevaluating the needs of law students and have begun instituting more practice-oriented programs. The law faculties have come to realize that law schools have an obligation to effectively instruct their students in basic lawyering skills, including: (i) researching and drafting objective writing pieces such as a memorandum of law or client letter; (ii) researching and drafting persuasive writing pieces such as a memorandum of points and authorities, brief in support of a motion, demand or negotiation letter, trial brief, or appellate brief; and (iii) presenting an oral argument before a judge or jury.
- Law schools have also supplemented their basic research, writing, and analysis courses with more advanced practical classes such as those in client preparation and counseling, mediation and negotiation, trial litigation, and appellate advocacy. Clinical courses in family law, criminal law, environmental law, immigrant rights and refugee law, and civil liberties and civil rights are offered in many schools. Many law teachers have also adopted more creative teaching methods utilizing computers and audiovisual tools.
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Chapter Five. Secondary Sources 49 55 results (showing 5 best matches)
- ) provides some of the most current research and scholarship that may be available on a particular topic, for free. SSRN’s Legal Scholarship Network allows users to upload their legal research, working papers, and law review articles to the SSRN website so they can be shared with other scholars, lawyers, and law students.
- The Gilbert Law Summaries, designed as study aids for law students, provide a concise discussion of a particular area of law. There are Gilbert summaries for most standard courses in law school. Gilbert summaries are arranged in an outline format.
- Legal blogs may provide the most up-to-date legal commentary available. Thousands of law blogs (often referred to as “blawgs”) are online, with many focusing on a specific area of the law or on practice in a particular jurisdiction. They may be produced by law professors or practitioners and can be hosted by a law school or firm, but note that not all are written by experts. The best use of a law blog is to check for recent developments in the field you are researching. To find one, try the
- Gilbert Law Summaries
- Treatises may be one volume, but most often they are multivolumed. They may review a broad tract of law like contracts or torts, or just one aspect of the law like landlord-tenant issues, insurance law, or medical malpractice. They may be written to cover the entire country or just one state. A local treatise will naturally be more precise and complete, being fitted to your state’s law. Examples of the various kinds of treatises are included in the Appendix. Also be sure to check the library catalog under the subject you are researching.
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Chapter Eight. Online Legal Research 75 41 results (showing 5 best matches)
- Law schools, law firms, and county and bar association libraries research the law online. Computers can speed up your search of the law, but unless you use the proper keywords—as in traditional legal research—they will not be very helpful. Consequently, you should know something about the subject you are researching before you begin using a computer research system. If the subject is unfamiliar to you, begin with an encyclopedia or a treatise to obtain an overview of the area. Many such secondary sources are also available through the online research systems discussed below.
- Bloomberg Law ( ) is an online research system available by paid subscription. It integrates legal research with Bloomberg’s established database of financial information. Bloomberg Law’s services include a proprietary law digest, law reports, and an online citator verification system (
- The Law Library of Congress and the Global Legal Research Center provide an excellent international legal resource, the Guide to Law Online (
- Ravel Law ( ) is owned by the LexisNexis Company and provides a platform for legal research and analytics made available by paid subscription. Its search visualization function generates a case map of relevant case law. The platform can also perform judge, court, and motion analytics.
- ) is an online research system available to individuals, law schools, and law firms, and offered by several bar associations as a free member benefit. Fastcase’s paid subscription database includes cases, statutes, regulations, news, and legal forms, and integrates the PACER system for federal docket searches ( , p. 74). Fastcase also provides a free mobile application that allows users to research cases and statutes without a subscription (
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Chapter Two. Understanding Our Legal System 5 31 results (showing 5 best matches)
- Whenever you do legal research, keep in mind two things: (i) the division between the federal government and the state governments; and (ii) the separation of either government (state or federal) into its three lawmaking branches (executive, legislative, and judicial). Problems in legal research correspond to these concepts. Is it a state and/or federal law problem? Which branch of government is involved in the problem? Is more than one branch involved? We will conclude this chapter with a discussion of these problems. (At times you will need to consider whether municipal or county law is also involved. But in order to present a clear picture of the state/federal distinction, we have decided to include municipal and county ordinances and administrative acts as part of the state law, and not discuss them separately.)
- Things to Keep in Mind for Legal Research
- The legislative branch is generally thought of as the branch that “makes the law.” In large measure, this is true. But both the judicial and executive branches can, and in fact do, make law. Your research will not be complete if you inquire only into one branch of government and do not consider whether the others may also be involved. Take an example:
- When researching, if you are unsure as to whether state and/or federal law applies and which branch or branches are involved,
- If you are filing for divorce, you go to state court. If you are filing bankruptcy, you go to federal court. If you are filing a discrimination suit, you could go either to federal or to state court. Under the theory of federalism, federal law takes precedence in settling some disputes, state law in others. But in large gray areas, both governments have the authority to legislate and exercise power. For example, many states have stronger consumer protection laws than the federal government provides. Obviously, if the researcher checks only federal law on consumer protection, the research would be incomplete as to those states that have enacted their own, stronger laws and regulations. On the other hand, if she only examines the state law, the researcher might miss a provision of the federal statute not adopted in the state legislation, but nonetheless applicable (besides, she would also not be using the clout of the federal government when attempting to remedy the matter). And, of...
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- One method found to be very helpful in organizing legal material is the Honigsberg Grid. This grid provides you with an immediate guide to, and comparison of, the cases and other authorities you have found. It will help you quickly see how each case deals with a particular issue and principle of law and allow you to make immediate comparisons among the several cases you have researched.
- Finding all the appropriate authorities relevant to your case is not all there is to effective legal research. You need to organize the fruits of your research—the cases, statutes, regulations, and other authorities—in a coherent, easy-to-review manner. The more efficiently you organize, the sooner you will be able to begin writing.
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Chapter Ten. Searching Through Legal Sources 105 11 results (showing 5 best matches)
- Your next steps in researching will depend on how much you know about your topic. If you know very little about your topic, you may want to jumpstart your research by first consulting a secondary source ( Chapter Five), such as a legal encyclopedia, treatise, or law review article, to get a general overview of the topic. You can do this either online or by using the books. Many secondary sources are now available online. If you do not find any secondary sources on your topic, you may then have to turn to the statute and case indexes to help you find relevant authorities.
- If you are having trouble thinking of words and synonyms for your chart, try using a dictionary or a thesaurus. The dictionary need not be a law dictionary, since many of the words are nonlegal. Online research systems like LexisNexis and Westlaw may suggest similar terms when you search.
- What kind of legal action is it and/or what kind of legal defense can be raised? Filling in this box may be a bit difficult at first since you may have to know some law to find an appropriate term. But commonly known terms like breach of contract, negligence, misdemeanor, nuisance, or libel may often be enough to start.
- Possible Next Steps for Research
- All legal sourcebooks have indexes. They also have tables of contents. Some include a table of cases. But it is the index that in the end determines whether you will be efficient in finding the appropriate material. This chapter will describe ways of searching through legal sourcebooks, whether codes, treatises, encyclopedias, digests, looseleaf materials, or indexes to legal periodicals. We will begin with a search through an index and follow up with an examination of tables of contents and tables of cases.
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Chapter Four. Statutes, Constitutions, Legislative History, and Treaties 29 56 results (showing 5 best matches)
- Researching the annotated codes is similar to researching any legal sourcebook. There is a descriptive word index, the preferred entry into the texts, and a table of contents for people who are familiar with the material and need only check topic headings.
- People often begin their research with a check through the statutes. Statutes are the laws enacted by Congress or state legislatures. (Laws are also enacted by municipal and county legislative bodies. These laws are generally known as “ordinances” and are briefly mentioned later in this chapter.)
- Yearly supplements are often sufficient for research purposes. Many laws do not take effect until the year following passage. But there will be times when you will need to check on a law that was recently enacted, one that has not yet been included in an annual supplement. How do you find it?
- When acts are passed, they are published by the federal or state government in chronological order. Federal laws so published are found in the United States , the official source of all laws enacted by the government. State laws are found in each state’s edition of its session laws, also the official source. But chronological order does not make for efficient research. It would be a painstaking process to figure out what the law is on a subject by searching in every year’s edition of the or the state’s session laws to see what, if any, laws were passed that year concerning your problem. Thus, editions known as codes were developed.
- This chapter will begin with a discussion of researching statutes and their annotations, followed by a similar description of state and federal constitutions. We will conclude with legislative intent, that amorphous term that attempts to collect together the thoughts of the representatives who passed the law. Judges often use legislative intent and legislative history in making their determinations on the interpretation of a statute.
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Chapter Nine. Reading and Understanding a Case 83 26 results (showing 5 best matches)
- As the word implies, a brief is a concise outline of the court decision. (This term “brief” should not be confused with a “brief” filed by an attorney in a court. A brief in the latter context is a forceful presentation of the issues and law involved in the client’s case. It is designed to persuade the court to decide in the client’s favor.) Briefing a case helps you organize your thoughts and determine what the court is actually saying. Because many court opinions are long-winded and often shrouded in legal terms, briefing is a more difficult skill than first imagined. It is not surprising to find that many law students and even lawyers will misread cases and jumble their analysis of the law on the subject under investigation. Without this skill, you will never be very effective in doing legal research and writing.
- North Carolina prison inmates sued in federal district court, claiming that the state’s failure to provide them with legal research facilities denied them access to the courts in violation of the Fourteenth Amendment. The district court granted the inmates’ motion for summary judgment, ordering the state to set up a legal research assistance program. A library plan was proposed by North Carolina and approved by the court, with the court holding in addition that the state did not also have to provide legal advisors. The court of appeals affirmed in all but one respect (which was not raised here). The state petitioned for review. The Supreme Court granted certiorari.
- Must states protect the rights of prisoners to have access to the courts by providing them with law libraries or alternative legal assistance?
- States must provide prisoners with an adequate legal assistance program, law libraries or legally trained persons.
- In doing research, a good brief will cut down your time measurably. You will not have to go back to read the case again because you cannot remember what it said and your notes are all jumbled. It will also make it simpler for you to be well organized in preparing your own case in court or at an administrative hearing.
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Chapter Thirteen. Writing a Memorandum of Law 123 18 results (showing 5 best matches)
- (This memorandum of law was written and edited by members of the Legal Research, Writing and Analysis Program at the University of San Francisco School of Law. Special thanks to Stuart Sutton, Cristina Morris, Ellyn Moscowitz, Rochelle Wirshup, and Jean Allen.)
- An evaluation is somewhat like a holding. It responds to the issue. But evaluations are opinions determined by you, whereas holdings are principles of law determined by the court. A brief answer allows the person reading your memorandum to obtain an immediate picture of the problem involved and how you propose to solve it. The reader can then read your discussion to see if you have approached the problem reasonably and researched the material thoroughly.
- Research Associate
- Research Associate
- If you are assigned a memorandum of law by someone in your office, you probably will be given the client’s file. Inside will be an interview sheet detailing what the client told the interviewer (or perhaps you were the interviewer) about the legal problem of the client. The client’s view of the situation is basically your set of facts, although perhaps some witnesses also have been interviewed, and some relevant documents may have been obtained. The opposing party will probably disagree on what happened, but that information will not come out until later, as the case moves along. For now, all you can do is use what you feel are the Chapter Fourteen). Base your memorandum upon them. You would be wise, though, to comment in your discussion on how the law may vary in its application should certain facts be found to be otherwise.
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Chapter Fourteen. Writing a Memorandum of Points and Authorities or Brief 133 21 results (showing 5 best matches)
- (This memorandum of points and authorities was written and edited by members of the Legal Research, Writing and Analysis Program at the University of San Francisco School of Law. Special thanks to Stuart Sutton, Cristina Morris, Ellyn Moscowitz, and Rochelle Wirshup.)
- This memorandum of points and authorities was written and edited by members of the Legal Research, Writing and Analysis Program at the University of San Francisco School of Law. Special thanks to Stuart Sutton, Cristina Morris, Ellyn Moscowitz, and Rochelle Wirshup.
- A statement of the case provides the reader with the legal basis for the suit, the remedies requested, and a review of the important court proceedings up to the present.
- Do you explain the legal basis, the important procedural background, and the remedies requested?
- These questions are not presented in the same way as they would appear in a memorandum of law. Since the purpose of an adversary piece is to persuade, you should phrase your questions in a way that engenders sympathy toward your client and guides the reader to the result you want. But, just as in a memo of law, your issues should be stated in terms of the facts.
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Chapter Fifteen. Writing an Opinion or Client Letter 151 7 results (showing 5 best matches)
- The tone of a client letter is very important. Since it is written to a layperson (unless your client is an attorney), your tone will be more informal than it would be if you were writing the same information to a supervising attorney. You do not need to cite any legal authorities in your letter, although sometimes attorneys will cite relevant statutes. If you have an attorney for a client, or perhaps a client who likes to research the law, you may want to refer to cases and other authorities as well.
- You then proceed with an explanation of the relevant law and its application to the particular facts of the client’s case. Your analysis should proceed in the same order in which you set out your issues above ( , issue by issue). The legal analysis process of applying the law to the facts is the same as that in other objective documents. (
- document. Thus, you need to provide a balanced presentation of both sides of the problem. Then, based on your knowledge of the law, explain what you suppose the likely outcome will be. Be realistic.
- Explanation of Law and Application to Facts
- If you are drawing a conclusion about the law, be sure that it is objective. The client can only make an informed decision if she is given a fair assessment of the situation. If an important fact is missing, be sure to point it out and consider alternative conclusions based on the missing fact.
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Appendix A. Review of Resources 155 40 results (showing 5 best matches)
Index 181 192 results (showing 5 best matches)
Copyright Page 2 results
- Gilbert Law Summaries
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
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Capsule Summary 35 results (showing 5 best matches)
Chapter Six. Administrative Agencies 57 20 results (showing 5 best matches)
- The index and finding-aids volume includes an explanation of how to use these books. The index can be researched in the same manner as any other legal sourcebook index.
- In most of your research, you have had to examine several sources—statutes, regulations, reporters, treatises, encyclopedias, digests, law reviews—before you could be certain you had found the proper primary material. For much of federal administrative law, this process has been greatly eased. Many publishers have collected statutes, regulations, agency decisions, and court decisions and arranged them by subject. Thus, if you have a question on federal labor law, housing law, or tax law, you may need only to check the appropriate looseleaf edition on that topic.
- Researching Agencies and Administrative Law
- Do not forget to check in the library’s catalog for treatises on the law,
- C.Researching Agencies and Administrative Law59
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Title Page 3 results
Chapter Three. Cases 17 20 results (showing 5 best matches)
- At the beginning of a case reported by West, you will find a summary of the facts and the decision followed by “headnotes” setting forth the principles of law stated in the case. These headnotes are written by editors of the company so as to key into the West system of law books. Accompanying each headnote is an illustrative key with a topic name and number. West divides each topic (there are more than 400 major topics) into key numbers, creating more than 800,000 individual units representing specific legal concepts. It then takes every principle of law stated in a case and includes it under one of these topics. Thus, someone who finds a headnote relevant to his research can turn to any West digest, look up the headnote topic and key number, and find a list of cases presumably dealing with the same principles of law. The researcher saves a certain amount of time by not needing to use the indexes in the digests. (
- : If the case is recent and you are looking at the hard copy of the reporter, you can look in the advance sheets of the named reporter. Advance sheets generally follow the same pagination as the bound volumes that will eventually replace them. However, if the case is recent, it is now faster to check online research systems such as LexisNexis and Westlaw, and legal newspapers. Your legal newspaper may have a digital version that provides the advance sheets online. If you know the case name and court jurisdiction but do not subscribe to Westlaw, Lexis or a legal newspaper, you can also try using Google or some other similar search engine to find the recent case (
- Each reporter has an accepted abbreviation. There are two proper sources for citing any legal authority, the Association of Legal Writing Directors’ (commonly known as the Bluebook). Both may be found in any law library. A growing number of jurisdictions have moved into medium- or vendor-neutral citations ( , citations by document and paragraph number and not tied to a particular publisher). A few law schools use the
- There are millions of reported cases and the number is climbing steeply (as lawsuits increase). Because of this, many states and the federal government no longer authorize the publication of every appellate decision. California, for example, requires that only appellate cases establishing a new rule of law or modifying an existing rule of law be officially published. However, West and various publishers of looseleaf services publish many of those otherwise unpublished opinions. Also, the online research services LexisNexis and Westlaw include many unpublished decisions in their databases (
- United States Law Week
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Chapter Eleven. Legal Writing and Analysis—Basic Guidelines 111 22 results (showing 5 best matches)
- If you are just learning legal analysis or are having trouble understanding the process, you may want to consider using an “IRAC” approach. Since the law is important only as it applies to a particular factual situation, good legal analysis requires that you show how the law interweaves with the facts of your problem. An “IRAC” approach will help you analyze a situation in terms of the facts.
- The secret to good writing is organization. There are two kinds of organization: organizing your raw material (research) and organizing your ideas into a document. We discuss organizing your research in Chapter Twelve. To organize your thoughts and ideas, try outlining.
- Applying the law to the facts may seem very easy to do; it may even seem “obvious.” Yet people often have trouble making the connections between the law and the facts of a particular situation. People tend to leave out essential facts by assuming that the reader can see where the writer is going. Yet good legal analysis requires that you discuss all specific facts and interweave them with the rule and reasoning you are applying. Only then can the reader truly see how the law fits into your situation. Do not assume that the reader can figure it out.
- The main purpose of writing is to get your point across with no misunderstanding on the part of the reader. A simple phrase or term understood by nearly everyone will often be more effective than a sentence filled with legal jargon and six-syllable words. While you will sometimes have to use legal terms, they should be used only when necessary. Unnecessary legal terms and legal mumbo jumbo (such as “hereby” and “heretofore”) give your paper the appearance of being pretentious, and cause the reader to wonder whether you really know what you are talking about or are merely hiding behind legal phrasing.
- Examination questions and legal memoranda usually call for a discussion of particular legal issues. For example, if you are dealing with a question on the kinds of damages that are legally available, discuss the legal aspect of each kind separately, and do not bring in a lot of interesting but uncalled-for information on evidence necessary to support the various damages (unless also asked).
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Chapter Seven. Keeping up to Date—Using Shepard’s and KeyCite 65 37 results (showing 5 best matches)
- Law is always changing. Courts issue opinions establishing new legal principles, legislatures enact new statutes, and administrative agencies adopt new regulations. Of course, the changes usually are not dramatic, nor does everything change at once. Law would certainly lose its continuity and precedent building blocks if it seesawed or swung in wide arcs every day. But even slight movement will have its impact. Imagine basing your legal arguments on a point of law no longer recognized as valid. The embarrassment does not come anywhere near the possible disastrous consequences it may have for your client.
- Westlaw’s citations research service, KeyCite, provides status flags next to the case or statute you are viewing to indicate that there is history available on your case or statute. A red status flag indicates that your case or statute is no longer good law, either in whole or in part. A yellow status flag indicates that your case has received some negative treatment. A blue “H” lets you know that there is some history on your case, but it is not necessarily negative; and a green “C” indicates that your case has been cited. Westlaw has recently added a new citation symbol to KeyCite in its newest product called Westlaw Edge. If you subscribe to Westlaw Edge, it has a new orange triangle symbol to indicate an overruling risk warning for your case for at least one point of a law. If the overruling risk warning symbol is shown, it is because your case relies on a prior decision that has been overruled or is no longer valid.
- Because many more cases are decided each week than statutes are enacted or regulations adopted, Shepard’s Citations is most frequently used with cases. Is the case you are researching still recognized as good law? Did a higher court reverse or modify the decision? Have courts followed the principles of law established in the case or did they establish new or different principles? Before you can safely cite a case as authority, you need to know how later courts have treated it. Finding out is simple. Just check the appropriate Shepard’s volume, look up the case, and run down the notations below its citation.
- When researching through Shepard’s, be sure to check if there is more than one bound volume in the series you are using. The red bound volumes may not be cumulative; you need to check through each one that includes your cited material. To be certain you have researched through the complete set, check the covers of the yellow, red, and blue supplements. They detail the bound volumes and supplements that make up that particular series.
- Using Shepard’s Citations for Research
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- Publication Date: June 24th, 2019
- ISBN: 9781642426724
- Subject: Legal Writing
- Series: Gilbert Law Summaries
- Type: Outlines
- Description: This outline covers court systems, precedent, case reporting system (including regional and state reporters, headnotes and the West Key Number System®, citations, and case finding), statutes, constitutions, and legislative history, and secondary sources (including treatises, law reviews, digests, and restatements). Also discussed are administrative agencies (including regulations), Shepard's Citations®, KeyCite, legal research using computers, including Westlaw, Lexis, and other online sources, reading and understanding a case (including briefing a case), using legal source books, basic guidelines for legal writing, organizing your research, writing a memorandum of law, writing a brief, and writing an opinion or client letter.
