Daniel Oran - Oran's Dictionary of the Law

If the use of two similar words adds an important shade of meaning, use them with care. Most doublings, however, are just clutter.

4. Worthless Words

Many worthless words are used frequently in legal writing. Some are worthless because they are almost meaningless. Others mean exactly the same thing as a clear English word. Here are some examples of both types of worthless words:

Here (or There)

What can a legal professional do about jargon? Before using a legal word, stop and think. Even if it is precise and useful, is it too technical for the situation? Is a vague word being used to smooth over vague thinking? Would fewer words do the job? Is the word on the “worthless list”?

What can a nonlawyer do about legal jargon? First, learn to recognize it. Legal language is less imposing once the “legalese” is stripped away. Next, ask for a translation when something you hear is confusing. And finally, don’t use it.

540 Appendix C

Jurisdiction or not?

Civil or criminal?

Trial or appeal?

Binding or persuasive?

Techniques of Research

ANALYZING THE FACTS

Know your facts

Know your objectives

FINDING THE LAW

Create a word list

Do your search

ANALYZING THE LAW

Reading cases

Reading statutes and regulations

USING THE RESEARCH

Validate with a citator

Cite it right

Re-analyze, including both sides’ positions

Write it up

Sources of the Law

PRIMARY SOURCES

Federal statutes and administrative regulations State statutes

State administrative regulations and local ordinances Case law: The National Reporter System

Case law: other sources

SECONDARY SOURCES

Martindale-Hubbell

Key Number Digests

American Law Reports (A.L.R.)

Citators: Shepards, Key-Cite, etc.

Legal encyclopedias

Legal Research 541

Other important secondary sources

(Words and Phrases; looseleaf services; treatises; law review articles; form, practice, and procedure books; etc.)

Books on doing legal research

LAW LIBRARIES

COMPUTER-ASSISTED LEGAL RESEARCH

Concepts in the Law

This section contains some basic concepts you should be familiar with before starting any serious legal research. You do not need to know these concepts in depth to do good research and you do not need to keep them in mind all at once. But you do need to know what they mean when you come across them.

The concepts are presented as questions in the heading of each section. You can skim through these questions each time you are deciding how to approach a legal problem, how to look for the right books, or how to use the legal material you have found.

Legislative, Judicial, or Executive?

Which Branch of Government Is Involved?

The legislative branch of the U.S. government enacts statutes, the judicial branch decides court cases (in part by “interpreting” those statutes), and the executive branch “runs” the country (in part by “carrying out” those statutes). Figure 1 shows the three branches of the U.S. government.

Notice “The Constitution” in the top box. The U.S. Constitution is not a statute, but is the document establishing the basic principles for the entire government and setting up the basic structure and procedures for running it. Nothing done by the government (or by its citizens) may legally conflict with the Constitution.

Next notice the “Executive Branch” box below the Constitution. The executive branch produces several types of written laws (such as executive orders and treaties) that are also not statutes.

And finally, look at the small boxes in the middle of the page and the one large box at the bottom. These show how the executive branch is divided into the cabinet departments and administrative agencies that run (regulate) specific parts of the government, primarily by issuing and enforcing regulations that look like statutes. These departments and

542 Appendix C

agencies also hold hearings that look like trials but are governed by principles of administrative law. For these reasons, you must always know which branch of government produced the document you are using.

Statute or Case?

Is It Statutory Law or Case Law?

Most of “the law” you research will be clearly recognizable as statutes (enacted by the legislative branch of government) or cases (decided by the judicial branch). “Statutory law” is a legislature’s official statement about what it wants to encourage, permit, or forbid. Statutory law is collected in books and on-line, often in the form of codes.

A statute usually starts out as a bill that is voted on and passed (or rejected) by the legislature (with each house, if there are two, holding hearings in committee and sometimes holding floor debate). The bill becomes a statute when it is signed by (or passed over the veto of) the president of the United States (or a state governor).

“Case law” is a statement by a court that is based on legal principles developed from past case decisions. It is a judge’s decision, plus the facts and reasoning behind that decision. It is called a court opinion and collected in books of case reports, reporters, and on-line.

See statute, statutory, case, and caselaw for more information.

Federal, State, or Local?

Which Level of Government Is Involved?

All three branches of government exist on the federal, state, and local levels. The state and local levels have divisions of authority similar to those of the U.S. government (Refer to Figure 1), but the terminology is sometimes different. For example, local constitutions are usually called charters and local statutes are usually called ordinances.

You must always know whether the constitution, statute, regulation, or case decision (opinion) you are dealing with is federal, state, or local.

Jurisdiction or Not?

Who Has the Power to Decide?

If a court “has jurisdiction” it has the power to decide a case. The decision of a court lacking jurisdiction has no legal effect. (“Jurisdiction” also describes a geographical area, such as a city or state, within which a government and its officials have the power to act.)

544 Appendix C

A court’s jurisdiction derives from written law. The power of the federal courts derives from the U.S. Constitution and certain federal laws allowed by the Constitution. The power of state courts derives from state constitutions and certain laws allowed by these constitutions. Sometimes, more than one court has the power to decide a case; these courts have concurrent jurisdiction.

Federal courts operate within strict limits. These courts have the power to decide those cases that pose a federal question and those cases that have antagonists from different states and an amount of money in controversy that exceeds a particular sum. This power to decide cases with persons from different states is called diversity jurisdiction. State courts also often have dollar maximums or minimums. For example, a “small claims court” might have jurisdiction over only “money claims under one thousand dollars.”

A court must usually establish power over the persons involved (personal jurisdiction) as well as over the subject matter in controversy (subject matter jurisdiction). Cases involving certain subject matters (such as disputed title to land) do not always require personal jurisdiction.

The jurisdiction of most courts is limited to a specific geographical area within the United States. For example, as seen in Figure 2, the federal circuits are composed of several states, while the federal districts are composed of a state or part of a state.

Civil or Criminal?

Which of Two Basic Categories of Law Is Involved?

The difference between civil and criminal cases is often easily seen. A crime is a wrong done “to society” which involves conduct specifically defined in a written criminal law. Crimes are usually either felonies (more serious, often punishable by a year or more in prison) or misdemeanors (less serious), with most states specifying degrees of seriousness (such as a “class two felony”). Most other cases are civil. They are usually lawsuits that involve one person or company in conflict with another person or company, although the government is involved in many civil cases (for example, zoning appeals).

The rules and procedures that apply to criminal cases are substantially different from those that apply to civil cases. For example, conviction of a crime requires proof beyond a reasonable doubt (the highest level of proof), while winning a civil lawsuit usually requires proof by the preponderance of evidence. Certain safeguards, such as the Fourth Amendment prohibition of unreasonable search and seizure, apply primarily to the government and only rarely apply to a civil case.

546 Appendix C

There is, however, a “gray area” between civil and criminal. For example, civil commitment involves confinement in a public institution even though no crime was committed. A minor traffic violation is not civil, but it is not a crime. The conviction of a juvenile offender for what would be a crime if the offender were an adult is not a crime, although it may be handled primarily as a “criminal” case.

Also, certain civil and criminal cases resemble each other. For example, assault is both a crime and the basis for a civil lawsuit, but civil and criminal assault may be defined differently and have different means of proof and defense. For all of these reasons, it is important to be sure whether you are dealing with a civil or a criminal case.

Trial or Appeal?

Which Procedural Phase of a Case Is Involved?

Most hearings in court cases take place in trial courts, but most of the opinions collected in reporters and in on-line sources are the result of hearings in courts of appeal. What are the differences between the two types of courts?

The purpose of a trial is to sort out the facts of a dispute and to apply the law to these facts in order to make a decision. Witnesses give testimony when they are questioned by lawyers for each side (and sometimes by the judge). The lawyers introduce physical objects as evidence, make motions, objections, and summary statements about the case, and sometimes file briefs.

Some trials are before a judge and jury (a jury trial) and some are before a judge alone (a bench trial). There are often preliminary hearings before the trial, and sometimes the judge will make a decision about the case based solely on these preliminary hearings.

A major purpose of an appellate proceeding is to decide whether the trial court applied the law correctly. Appeals are governed by special procedural rules. After an appeal is filed by a party dissatisfied with a trial court decision, the record from the trial (which includes part or all of the transcript and evidence accepted or refused by the trial judge) is transmitted to the appellate court. Briefs are submitted by both sides.

An oral argument is then presented before one or more appellate judges. There is no jury, no testimony, and no introduction of evidence because the factual findings made at trial usually cannot be altered. After study, appellate judges write the opinions contained in the reporters. Note: administrative agencies hold hearings that may be called trials or appeals, but they are administrative proceedings rather than court cases.

Legal Research 547

Hearing procedures are usually less formal than court procedures, and decisions can usually be appealed to (or replaced by a trial in) a trial court.

Binding or Persuasive?

Does a Prior Case Require a Judge to Rule a Certain Way?

Judges have wide discretion in deciding cases, but that discretion is limited by law. The decisions of a state court judge in Virginia, for example, must not conflict with the statutes and constitutions of Virginia and of the United States. Such written laws are one form of binding authority that a judge must follow in making a decision.

The other main form of binding authority is an opinion by a higher court in the same court system. This form of binding authority is called precedent. Judges must follow applicable precedent in much the same way that they must follow applicable statutes. This rule is expressed in the principle of stare decisis (“let the decision stand”). For example, the U.S. District Court for the Eastern District of Virginia (part of the 4th Circuit) may not make a decision that conflicts with decisions of the U.S. Court of Appeals for the 4th Circuit, the higher court to which appeals from the district court would go (see Figure 2). No court in any other circuit provides binding authority.

It is often important to know what nonbinding courts have decided, since this information (and other information, such as the views of legal experts expressed in treatises and law journal articles) can be persuasive to a judge. Such information is called persuasive authority.

Some information is more persuasive than other information. A judge from the U.S. Court of Appeals for the 4th Circuit will be interested in how similar cases were decided by the U.S. Courts of Appeals in other circuits. That judge, however, may care less about what a state court judge in Alaska decided.

You must find and analyze all binding authority. The less binding authority that exists, the more persuasive authority must be found. Persuasive authority also gives you a greater source from which to draw possible supporting arguments for your case.

Once all the binding authority has been identified—that is, once you have all the opinions and statutes that the judge in your case must follow—you must identify those parts of the cases that are binding. When a panel of judges decides a case, it is the written opinion of the majority of judges (the majority opinion) that must be followed, not any dissenting opinions. (A court such as the U.S. Supreme Court will often make a decision without a majority opinion. These decisions contain