Updating

The third and final building block to your introduction to legal research is updating. When selecting a source, be aware of the importance of currency. The law changes constantly. Therefore, a researcher must utilize the updating features of a particular print source and be aware of how frequently an online database is updated. It is important to use the most current primary and secondary source materials.

Online sources of legal information tend to be updated more frequently than print sources. However, you should be aware of how frequently legal database providers such as Westlaw, LexisNexis, and Bloomberg update their content. The frequency of updating tends to vary by platform and type of content. Information on when content was updated is available in each of these database providers. And for free legal web sites, such as those from courts and other government entities, information on when the information is updated is also available.

Law materials in print format are updated by paper pages or pamphlets, with new volumes, or as new editions of a text are published. Here are some examples:

(1) a pocket part insert at the back of a volume updates statutory law;

(2) a supplementary pamphlet provides new content for a volume of a legal encyclopedia;

(3) in a subsequent volume with more recent judicial opinions updates a case reporter;

(4) replacement pages for a looseleaf-bound treatise include information on most recent laws.

Another updating tool is the citator, which is a resource separate from the materials it updates. We will discuss the citator tool later in this lesson.

The methods for updating legal information may be unfamiliar to new legal researchers. When searching the Internet or online databases, students may not typically look for dates or other information on when a source was last updated. And the various ways that supplements and other materials update the law in print are quite unique to legal publication. Updating is a new, but very important, tool of the trade for some legal research apprentices.

The Gathering the Tools part of the lesson will introduce you to primary and secondary source materials in more detail. We'll start with the three main primary sources of law: judicial opinions, statutes, and administrative law.

Judicial Opinions

If you are in the beginning stages of your law school career, you probably are becoming all too familiar with the first of these, case law or judge-made law. Opinions written by appellate court judges are the basis of the "common law " tradition that the United States inherited from England. Judges create legal precedent with these written decisions. "Precedent" means that courts must follow the rules laid down in similar cases decided previously. That's why judicial opinions are important to all of us, and not just to the disputing parties involved in specific litigation. Caselaw precedent provides you with the authority to support your legal position.

Quiz. But when does judicial activity create common law precedent known as case law? Try these next two problems to test your understanding.

Will the following judicial activities create precedent that you might refer to as primary authority in a subsequent legal matter? Indicate yes or no.

• An appellate court judge's written opinion denying a pre-trial motion. Yes. When an appellate court judge creates a written opinion in a dispute, her decision can be referred to as legal precedent. The written opinion need not determine the outcome of a case.

• A trial court jury's conviction of a criminal defendant. No. A jury does not create legal precedent. The key things to remember here are that case law is judge-made law and that common law precedent is created by appellate court judges. A jury's decision in a criminal case affects only that particular defendant and does not create precedent.

• An appellate court judge's written decision in a bench trial. Yes. An appellate court judge's written opinion deciding the outcome of a case can provide legal authority to rely on in subsequent matters. Of course, not all judicial opinions are published and made available for consideration as precedent. But we'll deal with this fine point in just a bit.

• A federal grand jury's indictment. No. Similar to a jury's verdict, a grand jury's indictment does not have precedential value. It only affects the individual considered. And since grand jury proceedings are usually veiled in secrecy, you won't be able to track down related documents anyway.

• The second of two decisions rendered by an appellate court in the same litigation. Yes. A judge may author more than one written opinion in a particular lawsuit. One opinion may address one motion, while another addresses a different matter. Both written decisions could have precedential value for disputes arising under similar legal issues. On the other hand, many judicial disputes do not result in the creation of precedent. This is because the judge does not render a written opinion in these matters. The reasons for this are several--settlement of a case, jury trial, parties' dismissal. So, don't search for a written decision in every lawsuit that's ever been filed! You won't find it.

Quiz. Another important point to consider about case law is whether it is published.Unpublished case law may or may not be considered authoritative depending upon the rules of practice of the court. Consider the following:

Will each of these judicial documents be published? Indicate the best response for each: yes, no, or maybe.

- An appellate court's written decision in a case. maybe. Appellate courts publish some of their written opinions in most jurisdictions. The percentage varies. Opinions for the highest court of a jurisdiction typically are all published. The percentage of opinions published varies for the intermediate appellate courts. If published, these opinions will be available on the shelves of a law library and in online databases. If not, they can be obtained from the courthouse files and often in online databases.

- A trial court's written decision in a case. Maybe is the best answer for this one. Most of the published judicial opinions that exist are from intermediate appellate courts or highest from the highest courts of the various jurisdictions. State trial courts rarely publish their opinions and. Federal trial courts do so on a limited basis and publish a small percentage of their opinions. Again, electronic online access to unpublished trial court opinions is available for many courts.

- A jury's conviction of a criminal defendant. No. Jury decisions are not published and they have no precedential value. However, if you need verdict information for factual research, you can consult the criminal case files at a courthouse.

- A jury's decision in a civil matter. No. Jury decisions are not published and they have no precedential value. Is there a pattern developing here?

- A highest court's written decision in a case. Yes. Almost invariably, the opinions from the highest courts of the various jurisdictions are published in print and available in online databases. Case law from these highest courts creates much of the common law that exists in the United States.