Daniel Oran - Oran's Dictionary of the Law

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Shepard’s citators use dozens of symbols and abbreviations of their own. Be sure to check the front of the volume for a table or explanation of any you don’t know to avoid missing or misinterpreting key information.

Third, make sure you get all the information provided. For example, if one of the citations in the list is j224NW2d11231, you know that the case was mentioned on page 231 of volume 224 of the Northwest Reporter, Second Series. You also know from the “j” that the case was mentioned in a dissent (because you checked what “j” meant in the front of the book). And you know from the raised “11” that the judge in the later case discussed the specific legal point mentioned in the eleventh summarizing introductory headnote to the earlier case. And you are ready to beg for a computerized citator.

KeyCite, a Computerized Citator. Computerized citators (such as KeyCite on WESTLAW or Shepard’s on LEXIS) contain the same general types of information as Shepard’s books, and you follow the same general citation trails, but the process couldn’t be more different. With KeyCite, for example, you simply type in a case citation and the computer displays a list of citing materials, with most of the information in plain English rather than abbreviations and symbols. You can go directly from one citation to another. You can custom tailor the type of information displayed, choosing, for example, to see only those cases that have a strong negative impact on the cited case. Also, each citing case is given one to four stars to show how thoroughly it discusses the cited case.

KeyCite is also integrated with the rest of the WESTLAW system of case reporters, Key Number Digests, statute and regulation databases, law journals, ALR, etc. If, for example, one of the citing references given is an ALR annotation, you can go directly to that annotation if you are linked to it on-line. This allows you to “cruise” back and forth among various types of material very quickly. (See Computer-Assisted Legal Research for more information.)

Legal Encyclopedias

What Is in Them? Legal encyclopedias, like general encyclopedias, are multivolume information sets arranged alphabetically by topic. They usually have extensive cross-referencing, so they are a good way to get a reasonably quick general handle on a legal topic, especially if you need background material or initial leads to major cases and statutes. They are not, however, good books to quote as authoritative sources of law.

The two large national legal encyclopedias are Corpus Juris Secundum

(CJS) and American Jurisprudence, Second (Am. Jur. 2d). CJS is crossreferenced with Key Number Digests and the National Reporter System.

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Am. Jur. 2d is cross-referenced with American Law Reports and, increasingly, with the Key Number Digests and the National Reporter System.

Some states also have state legal encyclopedias.

How Do You Use Them? CJS and Am. Jur. 2d are available on WESTLAW, integrated with the bulk of WESTLAW’s materials. (See Computer-Assisted Legal Research for more information.) The paper versions have huge general index volumes at the end of the series. Use these indexes fully. Be creative. Then, even if the general indexes lead you straight to a topic or section within a subject volume, do not bypass the subject and analysis outlines. They may lead you to additional material. (Once you reach the right topic sections, do not forget to check the pocket part for updates.)

Other Important Secondary Sources

Words and Phrases. Words and Phrases (West Group) is a set of books plus supplements that list alphabetically thousands of legal, technical, and everyday words. Each word or phrase is followed by short summaries of how it was defined by judges in various cases. Words and Phrases is large, but easy to use (see Appendix A of this dictionary for more information).

Looseleaf Services. A looseleaf service provides information on one specialized area of the law (such as tax law, family law, or even medical devices law), on one court, or on more general legal topics. Looseleaf services often send out supplements every week, which either add to or replace older sections. They usually include relevant statutory law, regulations, caselaw, practical advice, and news about major activities in the field. Four large looseleaf publishers are Commerce Clearing House (CCH), Bureau of National Affairs (BNA), Prentice-Hall (PH), and Matthew Bender (MB).

Treatises and Law Journal/Law Review Articles. Treatises are individual books or small sets written for lawyers and law students. (Treatises for students are sometimes called hornbooks.) They cover specialized areas of the law, such as contracts or federal practice. You can find treatises through your law library’s catalog.

Law Review and Law Journal articles (plus shorter “notes” and “comments”) analyze legal issues. They are usually written by law professors, practicing lawyers, or top law students. The footnotes can lead to important cases. You can find these articles through the Index to Legal Periodicals, the Current Law Index, or the on-line Legal Resources Index.

Form Books, Practice Books, and Procedure Books. Form books are collections of sample forms that have been used in legal practice (rental agreements, wills, pleadings, etc.). They often have blanks to be filled in.

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The larger form books annotate the forms with extensive information on the statutes they are based on, case decisions interpreting them, and practical advice. These forms, however, must always be tailored to the individual legal situation. Thousands of legal forms are available on-line and on CD-ROMs, ready to be custom-tailored and filled in on your computer.

Practice and procedure books (sometimes also called form books) contain the detailed technical rules by which each system of courts, and each individual court, operates. Many are annotated with case decisions and practical examples. Attempting to practice before a court without a knowledge of these rules is embarrassing at best.

Books by Advocacy Groups and General Publishers. Organizations such as the ACLU, HALT, and others publish paperbacks and pamphlets on areas of the law important to nonlawyers. These include such things as probate law, mental patients’ rights, etc. Publications from trade associations, consumer groups, other advocacy organizations, and general publishers are often found in bookstores and general libraries. They should be relied on for general information only.

Books on Doing Legal Research

You may already know the basics of legal research, or you may want to start off with more detailed information. Here are some different types of books that may fit your knowledge level and learning style:

Books on a Specific Jurisdiction’s Materials. These include books on finding and using the law of most of the major states and the federal government. If much of your work depends on the law of one jurisdiction, one of these books (such as West’s Pennsylvania Law Finder) may be your fastest entry point.

Books and Materials for Paralegals and Other Nonlawyers. There are several “how to do legal research” books in this category (such as Statsky’s

Legal Research and Writing: Some Starting Points) as well as sections in more general works (such as the N.A.L.A. Manual for Legal Assistants). In addition, some commercial publishers (such as Nolo Press) and companies that teach individuals how to handle their own simple legal work tailor their legal materials for nonlawyer use. Many of these books and materials include information on computer-assisted legal research.

Books for Lawyers and Law Students. Nonlawyers can use many of these books effectively. They range from the handy (such as Cohen and Olson’s Legal Research in a Nutshell) to the huge (such as Jacobson, Mersky, and Dunn’s Fundamentals of Legal Research). If you can’t “test drive” your

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choice in a law library, compare a few in a law school bookstore by checking how the books find and use something you’ve already found and used on a prior research project.

Books on Computer-Assisted Legal Research. These range from free servicespecific materials (such as those that accompany subscriptions to WESTLAW and LEXIS) to books that include long lists of law-related Internet sites. Since specific research techniques and sites change rapidly, consider any book a short-term investment in getting up to speed quickly, and select a very recent copyright date. (The section starting on page 572 concentrates on basic techniques and mental approaches to computer-assisted research.)

Law Libraries

If you are familiar with, and comfortable in, law libraries, you do not need this section. If, however, you imagine a law library as a huge, dark cave, filled with dangerous ambiguities lurking to embarrass you, read on.

How do you find a law library? Most small law firms have access to computer-assisted legal research and enough books to handle many specialized problems and simple problems of a broader nature. Large law libraries exist in large law offices, bar associations, courthouses, and administrative agencies. They can handle almost any research problem, but not always in the most convenient way. Extensive law libraries exist in most law schools, some government agencies and courthouses, and a few general libraries.

How do you get in? First, call around. Some are open to the public, especially some courthouse and law school libraries. All “depository libraries” must allow public access to materials (such as the Code of Federal Regulations) that they get free from the federal government. Some law librarians will bend policies, even ignore “no public entrance” signs, if you begin by asking a research question.

Before you go. Do the preliminary fact analysis and problem definition before you go, not in detail, but enough to know why you need the library (see Know Your Facts, Know Your Objectives, and Create a Word List sections). Read the Concepts and Sources of the Law sections of this appendix, but do not bother reading the “How Do You Use It?” parts before you have the books in hand.

You’re in. Now what? Take time to orient yourself, with a library map if needed. Ask for any free materials on library or source use. If necessary, ask the librarian for the location of the books you need and about computer and copier use. Don’t hide what you don’t know. Be effusive with thanks.

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Then, before you start using the library’s materials and computer resources, briefly review why you are there and what you hope to accomplish.

If you are using law books and other “paper-based” materials, think about some of the “rules for library use” from the HALT pamphlet Using a Law Library (HALT, Inc., Wash., D.C.): 1) Write down complete source information before you take notes, including date, volume, section, and page. 2) Read all prefaces and content descriptions. 3) Put a bookmark in abbreviation tables. 4) When you see a reference you might want, make a note about it. 5) Take breaks before you get tired. 6) Do not rush or take shortcuts. 7) Do not hoard books. Take only what you need; find out library policy on reshelving and follow it.

If you are using the library’s computer, see the Computer-Assisted Legal Research section that follows here.

Computer-Assisted Legal Research

Much legal research is still done from books, but it is often done more quickly, easily, and accurately by accessing searchable databases for the materials discussed earlier in this appendix. The three main ways to access these databases are:

1.Commercial legal database services such as WESTLAW and LEXIS. A researcher typically connects to these services through a computer and either takes notes while searching the databases or transfers documents stored on a database to the researcher’s computer or printer. These services are the most effective, but expensive, ways to do most legal research. (This Appendix uses WESTLAW as its primary example, but includes LEXIS’s similarities and differences.)

2.The Internet, especially the World Wide Web. This is a vast and quickly changing storehouse of legal and nonlegal information that can be reached from any computer with Internet access.

The Appendix gives you a general approach to using this confusing, but essential, resource.

3.CD-ROMs and other storage media. These are produced by commercial database services, government, and nonprofit organizations. They require no remote computer connection because they are used on-site. They contain the same type of information as in #1, and can be searched by the same techniques, so this Appendix does not discuss them. (See page 579 for a Website that lists available CD-ROMS.)

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Commercial Legal Database Services:

WESTLAW and LEXIS

What Is in Them?

WESTLAW contains the full text of many different types of documents: cases from the National Reporter System, federal and state statutes and administrative regulations and decisions, Key Number digests and encyclopedias, legal texts and periodicals, ALR and KeyCite, and a wide range of articles from looseleaf services and nonlegal newsletters and periodicals. LEXIS, while less comprehensive and integrated, contains many of the same materials and, where they differ, provides similar services that use their products (such as Shepard’s Citators) rather than WESTLAW’s. WESTLAW and LEXIS also provide direct access to other companies’ information services. All of these documents and services can be searched using the same general techniques and can be “downloaded” to your computer or printer.

Once you learn how to use WESTLAW or LEXIS, the computer can search millions of words in seconds to find the documents you need. You can focus your research broadly or narrowly, and conduct searches by legal or nonlegal subject, by terms you choose (such as product names or persons) in the relationship you specify, and, in WESTLAW, by a specific West Digest Topic or Key Number.

The computer will then give you a list of documents that meet the criteria you’ve specified. You can display these documents in full text or by a specific part. You can then take a few notes from the screen, print or “download” text, or print a list to find the documents in the law library. Here is an example of how to use computer-assisted research to conduct your legal search:

■Suppose you need to know whether a U.S. district court in the First Circuit is likely to overturn a decision by the Immigration and Naturalization Service regarding deportation. Courts will usually do this only when the agency’s decision is not based on substantial evidence. But what is “substantial evidence”? A general definition does no good; you need to know how the U.S. Court of Appeals for the First Circuit defined this term in cases as similar to yours as possible. How do you find these cases?

■Library research might require wading through so many books that you are tempted to rely on general definitions and quotes from cases “sort of” like yours. WESTLAW and LEXIS can, however, retrieve any case from the First Circuit using the words substantial evidence. Because a large number of cases contain

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these words, searching additional descriptive terms is better. You want the cases retrieved to also contain the word deportation (as well as deport, deported or deporting). A WESTLAW or LEXIS search can be refined further by searching for these terms only in synopsis and digest paragraphs (summaries of the main legal points and case disposition).

Computer-assisted research is sometimes the best way to do “creative” legal research, such as finding persuasive judicial statements not easily found by traditional methods. Here is an example of how a lawyer conducted a creative search:

■When a wily businessman discovered some proposed changes in a federal agency’s regulations, he tried to rush through some purchases and sales before the new regulations took effect. The sales took longer than expected and he was stuck with a huge pile of goods. The federal agency refused to grant him an exception to the new regs, so the businessman sued.

■A lawyer who represented people who wanted to prevent the businessman from selling the goods needed a way to make a case against an exception based on what looked like either hard luck or mere stupidity.

■The law books are full of cases in which persons who used trickery were prevented from winning in court, but this businessman had not clearly done anything sneaky. There might not be any obvious legal phrases to lead the lawyer to the cases he needed, but he knew there were some good nonlegal ideas floating around that judges might have used in the past. So he searched WESTLAW for any cases in his jurisdiction in which the terms chestnut, fire, and cats-paw appeared. Why?

■To retrieve every judge’s opinion that used phrases from the old story about the monkey who convinced a cat to pull hot chestnuts out of a fire. WESTLAW retrieved several cases in which a judge essentially said, “The Federal Courts are not in the business of being used as a cats-paw to pull a private businessman’s chestnuts out of the fire.”

■Not a person to rely on one precedent, the lawyer then searched for the combined terms orphan, mercy, murder, and court. Can you guess why?

■The computer quickly scanned millions of words and produced several cases in which a judge said, “This reminds me of a man

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who murders his parents and throws himself on the mercy of the court as an orphan.” One of the cases was quite similar to the lawyer’s. To find that case by traditional library research he might as well have thrown darts at a wall of books.

There are two other major advantages of commercial legal databases. First, they have many legal decisions that are not collected or distributed any other way. Database services also make it much easier to verify a case’s current validity by tracing the course of litigation and how the case is mentioned in later cases and other authorities.

How to Use Them

Connect with the WESTLAW or LEXIS system, identify yourself by a user number and password, and identify your research. However, you should take your first research step before you use the computer. Before you begin, you should consider whether computer-assisted legal research is the most cost-effective method for your specific research issue. You should also define your issue and know what you want to find. (For more on this, review the Concepts in the Law and Techniques of Research sections at the start of this appendix.) For example, before you start paying for connect time you should consider the following: Is your research limited to a specific jurisdiction or type of court? What key terms, including synonyms, express your issue? Does your issue involve technical legal terms? In what relationship do you want your terms to appear in the documents retrieved? Should they be in the same sentence or the same paragraph? Once you know the answers to these questions, you can start your electronic research and maximize your efforts.

To start your research, select the information source you want to search. You might choose, for example, the database containing cases decided by the U.S. Supreme Court. This is abbreviated sct on WESTLAW. Now you are ready to enter a search request or query.

Suppose you want to know what the Supreme Court has said about attorney fees in bankruptcy cases. One way would be to request all Supreme Court cases where the words attorney, fees, and bankruptcy appear in the same sentence. To search WESTLAW or LEXIS for these three terms in the same sentence, you would type attorney /s fee /s bankrupt!. In this search the /s connector specifies that these terms must appear in the same sentence. The exclamation point will retrieve any term that contains the root bankrupt. Searching the term bankrupt! retrieves all of the following: bankrupt, bankruptcy, and bankrupting.

But you may still miss relevant cases. Your search does not include synonyms, such as lawyer, counsel, or costs, that may be used in court

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opinions. Always include synonyms; computer-assisted legal research systems are very literal. They do not assume you want lawyer just because you searched for attorney. A better WESTLAW search is attorney lawyer counsel /s fee cost /s bankrupt!. (On LEXIS, you would need to say attorney or lawyer or counsel /s fee or cost /s bankrupt!) Plurals and possessives are retrieved automatically.

If your search is too narrow or too broad, you can modify it in several ways. To broaden your search, use a broader “connector” between your search terms. For example, use /p instead of /s to request that your terms be in the same paragraph instead of the same sentence or use a “but not” connector (%) to exclude a term. (On LEXIS, you would use the phrase and not instead of the % sign.) These are only a few of the connectors you can use to specify the relationship between the terms you search.

If your search is too narrow, check your database. Did you really want cases from all federal courts, not just the Supreme Court? If so, run your search again in the appropriate database. Also, make sure you are searching all important terms that could be used to describe your issue. If you are still stuck, try a “natural language” search, as described later.

This is only one small example of how to do computer-assisted legal research. For example, in addition to the method described above, you can also search for specific phrases. (On WESTLAW, you must put the phrase in quotation marks, but on LEXIS you just type the phrase.) Use phrase searching when your terms always appear in the same order with no other intervening terms. Technical terms such as habeas corpus and ex post facto are good examples. You can also limit your search to a specific field, such as a case synopsis. You can even search for cases decided by a particular judge.

It is also possible to do a Key Number Digest search within the WESTLAW system. Key numbers categorize and index thousands of legal topics, with subtopics (then sub-subtopics) adding more numbers to the end of the identifying number. (See Key Number Digests on page 563 for basic information.) The computer-assisted version is faster, more flexible, and more thorough.

In the search request 48ak107(2), 48a is the West digest topic, k replaces the key symbol, , and 107(2) is the key number. A search within the topic 48a retrieves every case found within the topic; a search within 48ak102 retrieves every case found within the key number 102 under topic 48a; and a search within 48ak107(2) retrieves only cases found within the subclassified key number 107(2) under topic 48a. If you find too many irrelevant cases, search within a subcategorized key number. For too few relevant cases, search within a main key number or the whole key topic. You can also limit your search to a digest for your geographical region or, sometimes, for your specific legal subject. Key Number Digests can also be searched for specific words within a specific key topic or key number by using the techniques described earlier in this section.

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Finally, both WESTLAW and LEXIS allow you to do an entirely different type of search within the same databases: a “natural language” or “plain English” search. You can ask a question such as “What is the statute of limitations in a personal injury action?” or make a request such as “Give me all the cases interpreting the statute of limitations in personal injury actions.” This may not seem like “plain English” to most people, but the computer must first “translate” the request into the type of search discussed earlier. It decides which are the important words and looks for cases with the words near each other, looks for other forms of the words and for synonyms, and generally performs many of the “thinking” tasks you perform when doing a search with terms and connecting symbols.

A natural language search may find a general answer quickly, and it may help you to broaden your search thinking, but it is not a substitute for a more precise search. You may want to rephrase the question more clearly and concisely, restrict the question in ways supplied by the computer (such as to a specific range of dates), add related concepts from the computer’s thesaurus, or switch to a terms and connectors search. As these search programs become more sophisticated, an interactive series of questions may make them even more useful.

Computer-assisted legal research systems such as WESTLAW and LEXIS provide extensive on-line and phone customer assistance and written support materials. Because services, databases, and commands change, you will need to consult these research systems directly for specific questions.

The Internet: Especially the World Wide Web

What Is In It?

The Internet can give you a huge amount of the world’s collected information, assuming that you can find it, absorb it, and believe it. This information includes the text of many, but not all, cases, statutes, and administrative materials from federal, state, local, and foreign jurisdictions; legal periodicals, legal practice-area materials, legal forms, and law directories; massive amounts of information about government agencies, businesses, and nonprofit organizations; financial, scientific, medical, historical, geographical, and other information on almost every topic; plus news and opinions, both expert and far from expert.

Where Is It Located?

The Internet is a growing and changing network of computer networks. Information flows from computer to computer through millions of constantly different pathways. Some of this information sits in computers accessible to users through the Internet. These computers, called