V O L U M E II
part 1
Fundamentals of Research and Writing
The Keys to the Kingdom
Part 1 Chapters:
Legal analysis is the application of the law to a given
set of facts. This analysis is most often found in legal
writings, both by the parties and by the court. To find
the law that applies to a given set of facts, we engage
in legal research. The first and foremost goal of research is to find all relevant authority. Authority is anything the court can or must use in reaching its decision.
Good researchers do not act as a crusader for the client
in the library; they simply search for the law that applies to the client’s situation, whether it be favorable
to the client or not.
An internal, or interoffice, memorandum applies the
law in an objective manner. On the other hand, an external memorandum, or brief, works to apply authority
to the advantage of the client, minimizing the negative
points of damaging authority and maximizing the positive points of favorable authority. The goal of this chapter is to introduce the student to the concept of legal
analysis and proper analytical form and to teach the
student to use these skills to prepare an interoffice
memorandum. The student will begin developing such
legal research skills as: proper utilization of indexes,
research within legal encyclopedias and finding cases
and statutes in a law library.
To become good legal researchers, students must adopt
a series of new mindsets. First, accept the fact that
your opinion doesn’t matter. The only thing that matters is the law. Secondly, when creating a legal document, you must leave your individual style behind, using instead, the analytical system common to all legal
documents. With a little practice, you will realize that
this system makes writing easier, giving you a step-bystep procedure to follow. Following the accepted guidelines will enable you to produce a document that relies
on authority instead of opinion that anticipates the
ultimate court result and that argues as forcibly as
possible for the interests of your client.
1. Authority: Fundamentals
2. Research: Fundamentals
3. Writing: Fundamentals
Assignments
Law Library: Case Law
§ 1.4
Due Date:
/
/
Law Library: Statutes
§ 1.6
Due Date:
/
/
Law Library: Scavenger
Hunt
§ 2.8
Due Date:
/
/
Law Library: Words &
Phrases
§ 2.9
Due Date:
/
/
Law Library: Am. Jur. 2d
§ 2.10
Due Date:
/
/
Law Library: C.J.S.
§ 2.11
Due Date:
/
/
Interoffice Memo
§ 3.15
Due Date:
/
/
Other Assignment:
§ ___.___
Due Date:
/
/
Part One: Fundamentals of Research and Writing
1C
authority
Authority is whatever the court relies on in making its
decision. As we will see, there are different kinds of
authority: primary, secondary, mandatory, persuasive,
and non-authority. In this chapter, we will concentrate
on the identification of primary, secondary, and nonauthority. We will discuss more advanced applications
of authority, including identifying mandatory and persuasive authority, in a later chapter.
citations
In referring to an authority, one must provide a legal
“address,” telling the reader where to find more information about the case or statute. In this chapter, we
will provide the foundations for case law and statutory
citation form, using the Uniform System of Citation,
often referred to as the Bluebook form.
Legal Junk Food
Q. Doc tor, befor e you
performed the autopsy, did
you check for a pulse?
A. No.
Q. Did you check for blood
pressure?
A. No.
Q. Di d you
breathing?
chec k
analysis
Legal analysis is the application of any form of law to
a specific set of facts. This is a very quantifiable system of analysis. Once students master this system,
they find it much easier to author powerful and convincing legal documents. The system is referred to as
IRAC and every lawyer learns it in law school.
for
A. No.
Q. So, then it is possible that
the patient was alive when
you began the autopsy.
A. No.
Q. How can you be so sure,
doctor?
A. Because his brain was
sitting on my desk in a jar.
Q. But could the patient have
still been alive, nevertheless?
A. Yes, it is possible that he
could have been alive and
practicing law somewhere.
2
Essential Skills for Paralegals: Volume II
OBJECTIVES FOR PART 1
 Primary and Secondary Authority
Students should be able to identify the differences
between primary and secondary authority, and what
distinguishes official from unofficial authority.
 Correspondence
Students learn to create a demand letter and basic
client correspondence.
 Legal Analysis
It is critical that a paralegal understand the process and structure of legal analysis.
 Legal Memorandum Form
Paralegals need to communicate with the attorney
in memorandum form, often incorporating analytical skills.
 Index Research
The foundation of all legal research is the ability to
use indexes. Paralegals need to use these fundamental research tools efficiently.
 Breaking Rules into Elements
Students will be taught to break the hearsay rule
into elements and to apply each element to factual
situations.
Part One: Fundamentals of Research and Writing
3C
electronic research
Law Library and On-line Research Assignments
§ 0.1 Law Library and On-Line Assignments
Due to the fact that most students using this manual will have access to both
Westlaw and Lexis, the law library hard-copy exercises are mandatory only if
your program requires it. However, it is to your advantage to use the library.
This manual is designed so that each research assignment has three versions:
a. Law Library Research
b. Westlaw Research
c. Lexis Research
Law Library Research
Whether or not students use an actual law library, students should read through
all law library exercises in this manual. The Law Library research provides an
overview of the law book being studied. To become more thoroughly familiar
with law books, utilize the following:
“How to Use the Law Library” Tool
This powerful tool provides a hands-on introduction to dozens of law
books and can be found on the Labs page of the ParaStudent Web Site.
Westlaw and Lexis Research
Even students who utilize the law library are required to complete either the
Westlaw or Lexis versions of the On-line Research Assignments (both are
recommended). The Westlaw and Lexis research assignments provide specific
step-by-step instruction on how to access the material using those on-line
tools. All on-line assignment instructions assume that you have logged on to
one of the sites, and are starting at the home page.
Your training in Lexis and Westlaw will primarily be on-line, using the actual
sites. Students should utilize the following:
Lexis and Westlaw Labs - Located on the Labs page of the ParaStudent
Web Site providing real-time instruction.
Lexis and Westlaw On-line Training - Which are available to you as an
enrolled student in this program. Go to each site for details.
Access to the above tools makes it possible to become an excellent researcher
even without law library access.
Passwords
In order to access Lexis and Westlaw, students will need passwords. These
passwords are obtained from the companies after enrollment in the program
and typically take 3 to 4 weeks to process.
4
Essential Skills for Paralegals: Volume II
chapter 1
The Fundamentals of Authority
§ 1.1
WHAT IS AUTHORITY?
Authority is anything the court can or must use in
reaching its decision.
Knowing how to find cases, statutes, and other legal
materials is not enough to make you a competent
researcher. The lawyer or paralegal must also anticipate the court’s probable response to the material. To
make an initial determination about the court’s response, the researcher must be able to answer two
questions:
-Is the authority law or non-law?
(primary or secondary)
-If it is law, what weight will it carry?
(mandatory or persuasive)
Primary/Secondary
If the authority is law, it is primary. If the authority
is not law, it is secondary.
Primary Authority
Any form of law is considered primary authority.
Example: A statute, case or other form of law.
Secondary Authority
Secondary authority is non-law.
Example: A comment from a legal encyclopedia.
Mandatory/Persuasive
Determining what weight an authority carries is important. If the material is from a higher authority than
the court in which your client’s case is being heard,
and within the court’s jurisdiction, it is mandatory. In
other words, the court must follow the material unless
it can be established that the law has been superseded or declared unconstitutional. Material from a
court of the same or lower level is persuasive and the
court can choose whether to follow it or not.
Part One: Fundamentals of Research and Writing
5C
A rule protective of law-abiding citizens is not apt to flourish where its
advocates are usually criminals.
— William O. Douglas
Mandatory Authority
The researcher is always looking for mandatory authority. In theory, the court must follow such authority.
Example: A case you found in the law library that
came from a higher court in the appropriate jurisdiction.
Persuasive Authority
Although the researcher hopes to find mandatory authority, he or she usually has to settle for persuasive authority,
which the court is not required to follow.
Example: A case from the same level of court or
a case from a different jurisdiction.
Stare Decisis and Persuasive Authority
Stare decisis is a doctrine that holds that a court’s previous decision should be followed unless there is a compelling reason not to follow it. Although a court is not
required to follow a previous ruling by a court of the
same level, it will do so, unless a compelling reason is
given.
Non-authority
If authority is anything the court can or must use in
reaching its decision, then non-authority is anything
the court would never use in reaching its decision,
such as a case that had been overturned.
Examples: A case that has been reversed by a
higher court. A statute that has been superseded. A research book that is used as an index
or that could never be quoted.
6
Essential Skills for Paralegals: Volume II
§
1.2 PRIMARY AUTHORITY
The following is an introduction to the ten basic kinds of laws,
roughly in order of their supremacy, from the highest down.
constitution
The highest form of law. The fundamental law that establishes the basic rights and obligations of citizens and creates
the branches of government. The U.S. Constitution is the
highest law in the United States. Individual states, of course,
have their own constitutions.
statutes
Laws created by the legislative branch of government. The
U.S. Congress creates federal statutes which are contained in
the United States Code (U.S.C.); state legislatures create
statutes for their own states. Statutes are enacted law. Enacted law supersedes common law.
opinions
An opinion is a decision of a court applying law to specific,
factual situations. An opinion is often referred to as a case or
case law. For example, the case of Roe v. Wade is an opinion
of the court that applied what the court deemed was a constitutional right for a woman to have an abortion. Opinions are
common law.
treaties
A treaty represents an agreement between two or more governments. The President signs treaties, with the consent of
the Senate. For example, the Strategic Arms Limitation Treaty
(SALT) was negotiated by the United States and the Soviet
Union, but had to be confirmed by the U.S. Senate before it
became law.
executive order
A law created by the highest entity of the executive branch,
such as the President or governor. An example of an executive
order is the pardon of someone convicted of a crime.
Part One: Fundamentals of Research and Writing
7C
A lawyer should never ask a witness on cross-examination a question unless in
the first place he knew what the answer would be, or in the second place he
didn’t care.
— David Graham
administrative rules
These are rules and regulations created by state and
federal administrative agencies. For instance, the Federal Aviation Administration (FAA) creates rules governing air traffic throughout the country.
administrative decisions
Decisions by administrative agencies applying administrative rules to factual situations. For example,
the FAA can fine a person for making a joke about a
bomb in an airport. After a hearing, the agency would
issue a report detailing its decision.
rules of court
Rules that govern the procedures of state and federal trial process. Court rules are created by the legislature, the highest court in the state, or both. For
instance, the Federal Rules of Civil Procedure are the
court rules for civil federal trials.
Which of the following are
primary authority?
_______ a case
_______ a statute
_______ an ordinance
_______ an index
_______ a dictionary
_______ the SALT Treaty
_______ an encyclopedia
_______ a presidential pardon
_______ an administrative rule
_______ a city charter
_______ Roe v. Wade
_______ U.S. Constitution
_______ Kansas Constitution
_______ a court opinion
_______ an executive order
8
charters
The local equivalent of a constitution, a charter is
the basic and fundamental law of local governments;
they establish the structure of the local government
in that jurisdiction.
ordinances
The local equivalent of statutes. Ordinances are rules
that members of the community are expected to follow. If a person fails to cut his lawn, he is most likely
violating an ordinance.
The researcher’s first goal is to locate primary authority. The researcher may utilize secondary or nonauthority to get there, but law is almost always the
focus of research.
Essential Skills for Paralegals: Volume II
§ 1.3
USING CITATIONS TO
LOCATE AUTHORITY
A researcher or author of a legal document must be
able to locate and refer to an authority in order to be
able to use it. This is done through citations. A citation is a legal address. In the following pages, students will be asked to locate various citations in a
law library. In later chapters, students will learn the
form of a legal memorandum and the system of basic
legal analysis. Authority, research and writing are ultimately linked.
authority
It is essential that a researcher understand the contents and basic functions of the books found in a law
library. For instance, secondary authority (non-law) is
used mainly to locate and explain primary authority
(law.)
research
An encyclopedia is an excellent example of secondary authority. The purpose of a legal encyclopedia is
to provide basic explanations of most areas of law.
Like most forms of secondary authority, encyclopedias provide citations that lead the researcher to the
actual law (often cases or statutes.)
writing
The purpose of most legal research is to support legal writings, such as briefs or motions. As we will see
later, briefs are documents that attempt to persuade
the court to rule in favor of one side or the other. The
court doesn’t care what an attorney or paralegal think,
but is likely to pay attention to a statute or a court Legal Junk Food
opinion.
Counsel: The respiratory arrest
means no breathing, doesn’t
it?
Witness: That’s right.
Counsel: And in every case
where there is a death, isn’t
there no breathing?
Part One: Fundamentals of Research and Writing
9C
Assignment 1.4 a
§ 1.4
Locate the following cases
in the law library. You do
not have to copy the case.
Instead, write down the
first five words of the
case after the caption.
Case law means court opinions. Court opinions are
considered common law, meaning they arise from a factual
dispute in which the outcome has been determined by a
judge. How does a paralegal locate case law? That
depends on the information the paralegal has to begin
research.

Martinez v. State, 961 P.2d 752
(Nev. 1998)

Ward v. State, 1 S.W.3d 1
(Ark. 1999)

U.S. v. Barrow, 118 F.3d 482
(6th Cir. 1997)

Arizona v. Roberson,
486 U.S. 675 (1988)
Westlaw & Lexis
Research
After reviewing the Quick
Start Guides at the front of
this manual, locate the
above cases by these steps:
Lexis
1. Click on the
“Get a Document” tab
2. Type in the volume,
publication, and page
number to the above
citations, such as:
961 P.2d 752 (No
title or year is required.)
3. Click on Get
Westlaw
1. In the left column of the
Home Page, locate the
“Find this document by
citation” text box.
2. Type in the volume,
publication, and page
to the above citations,
such as: 961 P.2d 752
(No title or year.)
3. Click on Go
10
LOCATING A CASE WITH A CITATION
If the paralegal is provided with a citation . . .
A citation is a legal address. Almost any legal writing can
be cited, including cases. Following is a typical citation:
Canino v. New York News, 475 A.2d 528 (N.J. 1984)
Title
Canino v. New York News is the name of the case.
The title is always either italicized or underlined.
Volume
475 is the volume number.
Publication
A.2d stands for Atlantic Reporter, second series.
Reporters (and Reports) are collections of opinions.
In this case, we have a regional reporter, collecting
opinions from appellate-level courts within the
Atlantic Region.
Page
528 is the page number.
Court
N.J. stands for the Supreme Court of New Jersey,
the court that authored the opinion.
Year
1984 is the year the opinion was written.
All one needs to find a case is the publication, volume
and page numbers. Find the publication (Atlantic Reporter,
2d series), the volume (475), then the page (528).
Essential Skills for Paralegals: Volume II
If the paralegal has only a research issue . . .
There are many publications that help the researcher locate
cases, statutes and other forms of authority. Examples include
legal encyclopedias, digests, annotations and form books.
§
1.5 HOW TO READ A CASE
Official reports are published by the government (state or
federal) and generally include only the official opinion of the
court. Unofficial reporters are published by private publishers,
such as West Publishing. They contain the same opinion, wordfor-word, as well as tools to assist the researcher, as follows:
syllabus
This is a short synopsis of the case. It provides the
researcher with a snapshot of the legal matter and the
result of the case.
headnotes
A headnote is a summary of a specific portion of the case.
Each headnote is numbered (1, 2, 3, etc.) and each
headnote number refers to a point within the opinion.
(Unfortunately, if there is only a single headnote for a
case, it is left unnumbered. For research purposes, it
should still be considered Headnote No. 1.) A researcher
who is interested only in Headnote No. 5, for example,
could simply look for a bracketed number [5] within the
opinion. Before a researcher relies on any case, however,
he or she should read the entire opinion.
key numbers
Reporters are generally published by WestGroup (now
owned by Thomson Publishing) and use West’s Key Number
System. This mechanism for broadening the scope of
research will be covered later in this manual. The Key
Number references are provided at the beginning of each
headnote, represented by a key symbol, a topic, and a
number.
line of demarcation
This line, at the end of the last headnote, indicates that
all that follows is the official, word-for-word opinion of
Part One: Fundamentals of Research and Writing
11C
the court. Everything above is provided by the publisher,
and may not be quoted. Everything below is the court opinion
and may be quoted. (Unfortunately, if the last headnote
ends at the bottom of a page, the publisher does not provide
a line of demarcation. One simply has to be able to determine
that the top of the next column is the beginning of the
opinion.)
opinion
The opinion is the decision of the court and is printed below
the line of demarcation. Although not captioned as such,
the opinion provided first after the line of demarcation is
the majority opinion. Dissenting or concurring opinions are
titled as such and provided after the majority. The researcher
is almost always most interested in the majority opinion,
since it has the force of law.
Nearly every opinion has three elements:
1. History
The court generally begins with a quick overview of how
the case evolved. This is important to know, but a
researcher generally does not quote history.
2. Reasoning
This is the logic the court used to reach its result and is
what will convince a judge to follow a researcher’s legal
argument, so it is likely that the researcher will quote
from this section of the opinion in a memorandum or
other legal document.
3. Disposition
The result of the court’s decision. The most common
dispositions are for the court to affirm, reverse,
modify or remand. If the disposition of the case
reverses, it does not mean the current case is reversed. It means the earlier, lower court case has
been reversed by this later opinion.
12
Essential Skills for Paralegals: Volume II
Diagram 1a: Example of a Case from a Reporter
Parallel
Cite
Many cases, but not
all, will provide a
parallel cite above
the caption.
Caption
Headnote
Headnote
Syllabus
Brief explanation of
the case. The result
of the opinion (here,
“Petition denied”)
refers
to
the
validity of the case
from which the
appeal came.
Headnotes
A short paragraph
summarizing
a
portion of the
opinion. Note that
the number of the
headnote relates to
a reference point
within the opinion.
Headnote
Line of
Demarcation
Key
Number
Everything below the
line is the opinion of
the court, and may be
quoted. The material
above is provided by
the publisher and
therefore should not
be quoted.
Headnote
Reference
Point
Opinion
Headnote
Part One: Fundamentals of Research and Writing
13C
Diagram 1b: Example of a Case Downloaded from LexisNexis
Caption
Includes case title,
docket number, the
court writing the
opinion, the citations,
and the year the
opinion was filed (or
rendered).
ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. MORGAN JOSEPH
HALLMON
Misc. Docket (Subtitle BV) No. 13, September Term, 1995
COURT OF APPEALS OF MARYLAND
343 Md. 390; 681 A.2d 510;
1996 Md. LEXIS 91
August 28, 1996, Filed
Case
Summary
Provides information
that sets the historical
stage for the opinion
that follows.
The Procedural Posture
presents the legal
process, or violation of
that process, that has
taken place.
The Overview presents
the facts of the case
that
led
to
the
Procedural predicament.
The Outcome details
the finding of the lower
court.
CASE SUMMARY:
COUNSEL: ARGUED BY Melvin Hirshman,
Esquire, Bar Counsel for the Attorney Grievance
PROCEDURAL POSTURE: Respondent Commission of Maryland, FOR PETITIONER.
attorney was found to have assisted an unlicensed
person in the unauthorized practice of law in ARGUED BY Morgan Joseph Hallmon,
violation of Md. Lawyers’ R. Prof. Conduct Esquire, of Mitchellville, MD, FOR
5.5(b). That violation involved a hearing before a RESPONDENT.
zoning hearing officer. Investigation of that
complaint led to further charges and findings of JUDGES: ARGUED BEFORE Murphy, C.J.,
violations, namely, failure to respond to a demand Eldridge, Rodowsky, Bell, Raker, JJ. Opinion
for information by Bar Counsel.
by Rodowsky, J.
OVERVIEW: The attorney entered into an
agreement with a District of Columbia (DC)
attorney under which the attorney would
represent the clients of the DC attorney who
required counsel admitted in Maryland. The DC
attorney employed his wife, a law school graduate
who was not admitted to practice law.
OUTCOME: The court suspended the attorney
from the practice of law for 90 days.
Headnotes LexisNexis(R) Headnotes
Headnotes summarize
a part of the opinion.
The legal topics at the
top of each headnote are
the relevant subject
matter covered by that
particular headnote.
The headnote numbers
are denoted by [HN1]
(for Headnote 1),
[HN2], etc. By noting
the number of the
headnotes relevant to
your research, you can
pinpoint the part of the
opinion covering that
issue.
14
Legal Ethics > Professional Conduct >
Nonlawyers
Legal Ethics > Unauthorized Practice of Law
[HN1] Md. Lawyers’ R. Prof. Conduct 5.5, in
relevant part, reads: A lawyer shall not assist a
person who is not a member of the bar in the
performance of activity that constitutes the
unauthorized practice of law.
Legal Ethics > Sanctions > Investigations
[HN2] Md. Lawyers’ R. Prof. Conduct 8.1, in
relevant part, provides: A lawyer, in connection
with a disciplinary matter, shall not knowingly
fail to respond to a lawful demand for information
from a disciplinary authority.
OPINIONBY: RODOWSKY
OPINION:
[*393] [**512] The respondent, Morgan
Joseph Hallmon (Hallmon), has been found to
have assisted an unlicensed person in the
unauthorized practice of law in violation of the
Maryland Lawyers’ Rules of Professional
Conduct, Rule 5.5(b). n1 That violation involved
a hearing before a Zoning Hearing officer for
Prince George’s County. Investigation of that
complaint led to further charges and findings of
violations, namely, failure to respond to a
demand for information by Bar Counsel in
violation of Rule 8.1(b), n2 and failing to
maintain an escrow [*394] account in violation
of various requirements, including Maryland
Code (1989, 1995 Repl. Vol.), § § 10-302, 10304 and 10-307 of the Business Occupations
and
Professions
Article
(BOP).
[HN1] Maryland Lawyers’ Rules of
Professional Conduct, Rule 5.5 in relevant
part reads:
Essential Skills for Paralegals: Volume II
“A lawyer shall not:
...(b) assist a person who is
not a member of the bar in the
performance of activity that
Parallel Cites
Here Lexis provides the
official
cite,
the
unofficial cite, and the
Lexis cite. Note that the
Lexis cite should not be
used in your citation of
a case. The year at the
bottom (1996) is the
date used in your
citation.
Counsel
The attorneys who
argued the case before
the court.
Judges
Judges who heard the
case. “C.J.” means chief
justice, “JJ.” means
justices, (plural) and “J.”
means justice. Lexis also
provides the judge who
wrote the opinion.
The Opinion
The opinion is the law.
Everything else leads up
to this.
Star
Pagination
The numbers in brackets,
such as [*393], refer to
the page you would be in
if you were in another
publication. The page
number with the single *
is the official cite, and the
page with two ** is the
unofficial.
(Note that the starting
page of the case in the
official is page 390. If you
were to turn to page 393
in that case, this is where
you would be in the
opinion.)
Headnote
Reference
This is the point in the
opinion where the topic
from a particular headnote
is covered. This is a very
effective tool for quickly
locating relevant portions
of an opinion. Of course if
you decide to rely on the
opinion, you should read
the entire case.
Not e: This opin ion has
been redacted for purposes
of demonstration. For the
com plet e op inion, s ee
Appendix B.
§ 1.6 FINDING STATUTES WITH A CITATION
Assignment 1.6 a
A statute, a law created by the legislature, acts as a Locate the following statutes in
general rule for society. Unlike case law, statutes do not the law library. You do not have
to copy the statute. Write down
reflect specific factual situations.
the first sentence of each
statute.
There are federal statutes and state statutes. The
researcher may locate statutes in a couple of different 42 U.S.C. §1204
ways, depending on the information provided.
Iowa Code Annotated §85.27
If the paralegal is provided with a citation . . .
As mentioned previously, almost any legal writing may
be cited, including statutes. The following is a typical Nev. Rev. Stat. §37.010
federal statutory citation:
42 U.S.C. §1204 (1984)
Westlaw and Lexis
Research
After reviewing the Quick
Title or Chapter
42 stands for Title 42. In many state statutes, Start Guides at the front of
this manual, locate the
the 42 might stand for Chapter. In either case, the above statutes:
researcher is led to this number first.
Publication
U.S.C. stands for the United States Code.
Section Symbol
§ stands for “Section.” §§ stands for “Sections.”
For example: 42 U.S.C. §1204, or 42 U.S.C. §§1204
to 1207. It would also be appropriate to write 42
U.S.C. Sec. 1204.
Lexis
1. Click on the
“Get a Document” tab
2. Type in the above
citations one at a
time. (Do not include
the “§” symbol.) For
example:
42 U.S.C. 1204
3. Click on Get
Year
1984 is the year the statute was enacted. (Not Westlaw
all jurisdictions require the year in statutory 1. Locate the
“Find this document”
citations.)
text box on the left side
To find the statute, one needs the publication, title
(or chapter) and section. Locate the publication
(United States Code), the title (42), then the section
number (1204).
of the Home Page
2. Type in the above
citations one at a
time. (Do not include
the “§” symbol.) For
example:
42 U.S.C. 1204
If the paralegal has been given a research issue . . .
There are many publications that help the researcher
locate cases, statutes, and other forms of authority. 3. Click on Go
Part One: Fundamentals of Research and Writing
15C
Examples include legal encyclopedias, digests, annotations,
and form books. But if the researcher is specifically looking
for statutory authority, start in the index to the statutes
being researched.
§
1.7 HOW TO READ A STATUTE
Official statutes are published by the government (state or
federal) and generally include only the statutes. Unofficial
statutes are published by private publishers, such as West
Publishing, and contain the statutes, with additional research
tools and resources.
For example, the interpretive notes and decisions below
provide references to cases that have actually been
interpreted and applied the statute in question.
Diagram 1c: Example of a Statute
Legislative
History
Indicates
previous
versions of
the law or
other
historical
details.
Often refers
to session
laws where
the bill or
act was first
published.
16
Essential Skills for Paralegals: Volume II
The Statute
Usually
surprisingly
short, the
statute is the
only part that
should be
quoted.
Research
Tools
This part is not
law. These are
other sources
provided to
help expand
the research.
chapter 2
The Fundamentals of Legal Research
§ 2.1
THE SYSTEM OF LEGAL RESEARCH
The following are examples of common legal reference
materials found in almost every law library:








annotations
legal treatises
form books
legal encyclopedias
legal dictionaries
litigation aids
digests
legal periodicals
These are just a fraction of the research materials
available in a law library. They serve different purposes.
•
•
•
•
•
•
•
•
•
Some
Some
Some
Some
Some
Some
Some
Some
Some
comment extensively on areas of law.
educate.
assist in strategies.
assist in research.
cover almost all areas of law.
cover only a single topic.
contain selected primary authority.
contain only secondary authority.
contain only non-authority.
Whatever their purpose, all legal materials are accessed by the same research system. For our purposes, we will call this system the Unified Theory of
Research. This system is very simple, as the following outline illustrates:
Part One: Fundamentals of Research and Writing
17C
Index to Main Volume to Additional Authority
The researcher should almost always begin in the
index. The index will lead to the appropriate main
volumes of that particular set of books. The main
volumes will lead to additional authority, such as a
case or statute.
§ 2.2 INDEX RESEARCH:
THE HIERARCHICAL SYSTEM
The general rule is to start in the broadest index for
any set of materials. Sometimes this resource is
called the general index, sometimes, the descriptive word index.
There are a few books that do not lend themselves
to starting in the index. Reports and reporters contain opinions of the court. Since opinions are released day-by-day, year after year, they are arranged
chronologically, with no index. (As we will see, however, digests act as an index to case law.)
It is helpful to understand that indexes use a “hierarchical” system. This means that the index starts
with a topic, then a subtopic, then a sub-subtopic,
and so on. In this system, the sub-subtopic relates
to the subtopic, which in turn relates to the topic.
For an example, study Diagram 2a.
18
Essential Skills for Paralegals: Volume II
§ 2.3 INDEX SIGNALS
Beginning researchers are often confused by signals, which are just guides to
lead the researcher to the appropriate point within the index. They act like sign
posts.
The most common signals are:
infra or ante
Look for your topic below, within the same heading.
supra
Look for your topic above, within the same heading.
this index
Look for the referenced topic as a general, broad topic within the same
index series.
Diagram 2a: Example of an Index
topic
subtopic
sub-subtopic
sub-sub-subtopic
The last entry under this
example would therefore
read:
Witn § 389 deals with the
validity of a privilege as to
coconspirators that involve a
husband and wife under the
topic of privileges and
communications
Privileges and Communications, cont.
Habeas Corpus Const L § 327
Wills and Estates Estates § 84
Husband and Wife Witn § 359
Coconspirators
Accomplice Witn § 524
Validity of privilege as to Witn § 389
Spouse as victim Witn § 296
Waiver Witn § 274
Wills See Habeas Corpus, supra
Institutions
Medical Staff Phys & S § 165
Relatives, communication
with children Hosp § 48
Spouse See Marriage, this index
International Law Int L § 294
The topic and section abbreviations in an index, such
as Witn § 389, always lead the researcher to the
main volumes of the publication being researched.
Each index has an Abbreviation Table. Refer to it as
necessary.
Part One: Fundamentals of Research and Writing
19C
§
2.4 USING WORD ASSOCIATION
The new researcher can feel at the mercy of the quality of
the index since, unfortunately, some indexes are better
than others. One method of overcoming index deficiencies
is to locate places in an index where a topic might be
hidden is by word association, sometimes called
“cartwheeling.”
To begin a search in court rules, for example, write out (or
concentrate on) the research question. Look for any key
words or terms. Read the following question:
According to court rules, must the summons inform
the defendant of the time he has to file an answer?
Key terms might be:
summons
time
answer
The person who created the index, however, might refer to
one of the terms under a different subject. For instance,
while we may call the pleading which initiates a suit a
complaint, some states might call it a motion for judgment
or a petition. It may be helpful to write down the
alternatives.
summons
citation
On point
When researching,
the object is to find
material relevant to
the issue being
researched. This is
often referred to as
locating “on-point”
authority, or authority
that is “on all fours.”
20
time
response
answer
defense
In addition, look for alternative areas under which key terms
might be covered. For instance, many indexes refer to
discovery under the term ‘discovery,’ but some deal with it
under the broad heading of “pretrial procedures.” Realizing
this further broadens the key term list.
summons
citation
return of
service
time
response
deadline
answer
defense
pleading
By broadening the number of terms, we have dramatically
increased the chances of finding on-point material.
Essential Skills for Paralegals: Volume II
Exercise 2.4 A
You are researching the following topics. Cartwheel them to better access
an index.
-interrogatories
-slip and fall
-conflict of interest
-husband-wife privilege
-hospital
-summary judgment
-fatal car accident
-drug overdose
-plea bargain
Part One: Fundamentals of Research and Writing
21C
§
2.5 COMMON RESEARCH QUESTIONS
Beginning legal researchers almost always want to know:
Where do I start and when do I stop?
Where Do I Start?
This one is easy. The researcher can start in any of many
research sources. Encyclopedias, law reviews, journals, statutes, regulations, cases, dictionaries, and many other books
could prove helpful. In most cases, five sets of books constitute the majority of materials necessary to begin a legal
research project. These are: American Law Reports; American Jurisprudence, 2d; Corpus Juris Secundum; digests; and
state or federal statutes. The researcher who develops the
skills to research within these five sets of books will be able
to use almost any resource in the library.
When Do I Stop?
This one is not so simple. The researcher who has thoroughly researched all the standard materials or who has
searched until the materials begin to lead to the same
cases and statutes can rest easy that all relevant material
has been found. This exercise is designed to introduce students to legal encyclopedias, specifically American Jurisprudence, 2d and Corpus Juris Secundum, the two national
legal encyclopedias. At this point, the goal is simply to get
to know the books. If one of the encyclopedias does not
contain material relevant to the assignment, don’t close
the book. The student should choose another topic, any
other topic, which will lead him to the main volumes.
Some law libraries subscribe only to one encyclopedia, but
each encyclopedia is accessed in the same way. If you learn
one, you learn both!
Remember, the goal at this point is to answer the questions in the assignments on the following pages. Students
will not be able to do this without opening all the relevant
volumes in each set of books.
22
Essential Skills for Paralegals: Volume II
§ 2.6 VISUALIZING THE BOOKS
Before leaving the library, sit down, close your eyes, and
try to picture a page from American Jurisprudence, 2d. Next
try to picture the index for American Jurisprudence, 2d. Try
to visualize the supplement, etc. Then ask yourself:
Can I visualize these tools in my mind?
Am I able to picture the differences between
them?
For instance, picture a page from Corpus Juris Secundum,
as opposed to Words & Phrases.
Corpus Juris Secundum
- Corpus Juris Secundum has commentary on most of
the page.
- Within the commentary, there are superscripts that
refer to footnotes.
- The footnotes are at the bottom of the page.
- The footnotes contain citations to authorities.
Words & Phrases
- Words & Phrases has terms in boldface.
- Each term is followed by short paragraphs.
- The paragraphs are definitions of the term.
- Each paragraph also includes a citation.
Being able to visualize a book helps the researcher understand its function. Accomplishing this visualization is the
key to understanding the materials.
Part One: Fundamentals of Research and Writing
23C
§ 2.7
PUBLISHERS:
A GAME OF MUSICAL CHAIRS
There are two major research systems, each created decades ago by a publisher.
West Publishing Company
West, the largest publisher of legal materials, is renowned for its Key Number System, a remarkably userfriendly system that allows the researcher to expand
his research by cross-referencing multiple digests.
West’s research system is designed to give the researcher efficient access to the law.
Lawyers Cooperative Publishing Company
Lawyers Cooperative created the Total Client-Service
Library (TCSL) research system. Unlike West’s system, which primarily leads to the law, the TCSL provides practice aids to assist the researcher in the
representative process. The TCSL leads the researcher
to additional materials, usually published by Lawyers
Cooperative. They include annotations, form books,
treatises, and other practice-oriented materials.
In the late 1990s, West Publishing reorganized as
WestGroup, retaining West Publishing as a subsidiary and
purchasing Lawyers Cooperative Publishing Company as a
separate subsidiary. In the early 21st century, WestGroup
was acquired by Thomson Publishing Company. In order to
train the researcher in the two major legal research systems, this manual will generally refer to the original publishers.
24
Essential Skills for Paralegals: Volume II
§
2.8a LAW LIBRARY SCAVENGER HUNT ASSIGNMENT
To become familiar with your library’s layout, locate the following publications:
AMERICAN JURISPRUDENCE, 2d
index
main volumes
 supplement (pocket part found in the back of most volumes)
CORPUS JURIS SECUNDUM
index
main volumes
 supplement (pocket part found in the back of most volumes)
REPORTERS (Your Regional Reporter)
advance sheet for reporters
(a series of softbound booklets containing new cases, usually found at the end of a
series of reporters)
any case within a reporter
a headnote found at the beginning of any case
YOUR STATE STATUTES
index
main volumes
 supplement (pocket part found in the back of most volumes of statutes)
WORDS & PHRASES
main volumes
 supplement (pocket part found in the back of most volumes)
Part One: Fundamentals of Research and Writing
25C
§
2.8b WESTLAW SCAVENGER HUNT ASSIGNMENT
If you are using Westlaw instead of a law library, take this opportunity to become
familiar with the navigation tools and services offered. Most importantly, just browse
awhile. Below we will conduct a Natural Language search (see Chapter 10 for Terms
and Connectors searches).
1. On the left column in the Search these databases text box, type: allfeds
2. Click on the Natural Language tab, and type the following query (phrases or multiword terms are placed in quotations): paralegal or "legal assistant" and engage and
"unauthorized practice of law"
3. Try modifying the search using the Thesaurus link to the right of the text box.
Simply pick and choose the terms you want to add, then click OK.
4. After the results appear, you can modify either the search query or the database
being searched. Try switching databases by typing “allstates” into the Database text
box at the top of the results page, and click search. You can then link to the cases
that appear in the search results.
LOCATING KNOWN AUTHORITY
5. Return to the home page by clicking on the Westlaw Tab. Try to find a case or
statute based on a citation you already have. For example, in the Find this document
text box, simply type the following citation: 123 P.3d 669. (Note that you do not
need the title.) You should find a case titled State v. Miles. Skip past the 12 headnotes
in this case (the initial paragraphs) and locate the Opinion. The Opinion is the law.
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Essential Skills for Paralegals: Volume II
§
2.8c LEXIS SCAVENGER HUNT ASSIGNMENT
If you are using Lexis instead of a law library, take this opportunity to become familiar
with the navigation tools and services offered. Most importantly, just browse awhile.
Below we will conduct a Natural Language search (see Chapter 10 for Terms and
Connectors searches).
1. Click on the Search tab at the top of the page.
2. Note the “sub-tabs” under the main tabs. They provide alternate methods of
searching. For most searches, the default tab will be used for searches. In this instance,
leave the sub-tab on Sources.
3. Notice the Look for a Source box. Here you are provided with multiple databases.
For this initial exercise, select the Federal & State Cases, Combined database.
4. Click on the Natural Language button, and type the following query (phrases or
multi-word terms are placed in quotations): paralegal or "legal assistant" and engage
and "unauthorized practice of law"
5. Try modifying the search using the Suggest Terms link to the right of the text box.
Simply pick and choose the terms you want to add, then click OK.
6. After the results appear, review the overviews. Click on the title to any results that
appear relevant to view the entire opinion. Hint: To make the results more readable,
select Hide Hits at the top of the page.
LOCATING KNOWN AUTHORITY
7. Click on the Get a Document tab at the top of the page. Simply type the following
citation: 123 P.3d 669. (Note that you do not need the title.) You should find a case
titled State v. Miles. Skip past the headnotes in this case (the initial paragraphs) and
locate the Opinion. The Opinion is the law.
Part One: Fundamentals of Research and Writing
27C
§ 2.9
INTERACTIVE STUDY:
WORDS & PHRASES
Words & Phrases is a multi-volume legal dictionary by West
Publishing Company. Unlike other legal dictionaries, Words
& Phrases actually provides a quotation from a court opinion
that defines the term. If the researcher finds relevant material, the quote that he or she would use would be from the
opinion, which is primary, rather than a dictionary definition,
which is secondary.
The Volumes
Begin your Words & Phrases research in the main volume
containing the desired term.
The term you are researching is provided in boldface. Below the
term, are paragraphs quoted from court opinions. There may be
one, a few or several quotes. At the end of each quote is a
citation to the opinion being referenced. The researcher should
locate the actual case to cite an authority found in Words &
Phrases.
The Supplement
Check the corresponding term in the pocket part (also called
supplement), found in the back of each volume.
As more recent definitions are created by courts, they are
included in the supplement of each volume.
ASSIGNMENT 2.8A
Using Words & Phrases, research terms relevant to
your client’s situation and answer these questions.
1. How many volumes make up Words & Phrases?
2. Did you locate a relevant term?
3. Was your term updated in the supplement?
Alternate On-line Research 2.9
Visit the Findlaw.com Legal Dictionary site, and research terms and
phrases relevant to your research project. The site address is:
http://dictionary.lp.findlaw.com/
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Essential Skills for Paralegals: Volume II
Diagram 2a: Screen Shot of Words & Phrases
Part One: Fundamentals of Research and Writing
29C
§
2.10a INTERACTIVE STUDY:
AMERICAN JURISPRUDENCE, 2d
American Jurisprudence, 2d is published by Lawyers Cooperative Publishing Company, and is part of its Total
Client-Service Library.
American Jurisprudence, 2d is a national legal encyclopedia. Legal encyclopedias provide at least a little information about almost every area of law. The encyclopedias have two basic goals:
To educate the researcher about a topic.
To lead the researcher to primary authority.
Am. Jur. 2d (as American Jurisprudence, 2d is commonly abbreviated) educates the researcher by commenting upon an area of law. Within the commentary
are footnote reference numbers (example: 13). These
references lead the researcher to the cases and statutes provided in the footnotes at the bottom of the
page, thus guiding him or her to primary authority.
Am. Jur. 2d discusses the law and may be quoted, but
it is not the law. Therefore, Am. Jur. 2d is secondary
authority.
The Index
Begin your Am. Jur. 2d research in the General Index.
The Am. Jur. 2d General Index, usually found at the end
of the main volumes, is excellent. It is a multi-volume,
softbound index. Since legal encyclopedias are arranged
topically, the index will lead us not to a volume and
page number, but to a topic and section number. (For
instance, Depo § 273 in the General Index would tell
the researcher to find the main Am. Jur. 2d volume
covering the topic of depositions and turn to Section
273). If the researcher doesn’t understand a specific
abbreviation, he should look at the beginning of a main
volume of Am. Jur. 2d. for an abbreviation table. Many
law books, including Am. Jur. 2d, have such tables.
30
Essential Skills for Paralegals: Volume II
The researcher should also observe whether there is a
smaller, single volume General Index Update. This is
how the General Index is supplemented, since softbound
volumes usually don’t have pocket parts.
ASSIGNMENT 2.10 A
Using the Am. Jur. 2d General Index, answer these
questions.
1. How many volumes make up the Am. Jur. 2d
General Index?
2. Is your research topic covered in the index?
 yes
 no
3. The Am. Jur. 2d index leads to which of the
following?
a. volume number, series, page number
b. a topic and section number
c. a topic and key number
4. Does the index have a supplement?
 yes
 no
5. If yes, where is it?
6. Is your topic covered in the supplement?
 yes
 no
7. Provide any cites to the Am. Jur. 2d main volumes the index may have provided.
Part One: Fundamentals of Research and Writing
31C
The Main Volumes
The General Index leads the researcher to the main volumes of Am. Jur. 2d.
After obtaining a topic and section number from the General Index, the researcher must find the main volume covering the topic. Then the specific section number is found.
After the section number Am. Jur. 2d will provide a boldface, short statement of the subject matter for that section number, followed by commentary of the subject matter. If any passage in the commentary is relevant, the
researcher can refer to the footnote that corresponds to
the raised number (footnote reference) in the commentary.
ASSIGNMENT 2.10 B
Locate the volume and section number provided by the
index and answer these questions.
1. What is the subject matter under your topic and
section number? (There should be a short, boldface statement.)
2. Does the discussion provide any footnote references?
 yes
 no
3. What kind of research assistance do the footnotes provide?
4. Provide at least one case or statute from the
footnotes.
32
Essential Skills for Paralegals: Volume II
The main volumes of Am. Jur. 2d have one other feature that
must be used with caution. It is a useful tool called the Volume index, or Title index.
The Volume or Title index is many times more detailed than
the General Index, possibly tempting the researcher to begin
there. This index leads only to material within that specific
volume. (In some older volumes, this index provides only
section numbers, not topics, since this index refers only to
the specialized volume.) Therefore, if there was potentially
critical authority under a different topic, the researcher might
never find it by using the Volume Index alone. With these
precautions in mind, the researcher should use the Volume
Index regularly, as a supplement to the General Index.
ASSIGNMENT 2.10 C
Within a main volume, locate the title or volume index
and answer these questions.
1. What is the topic of the Title Index you are researching?
2. Are there any references to your research assignment?
3. Does this index refer the researcher to topics and
section numbers, just topics, or just section numbers?
¨ topic and section numbers
¨ topics only
¨ section numbers only
4. Where does this index lead?
¨ generally to a point within that volume
¨ generally to another topic or volume
¨ generally to other research sources
Part One: Fundamentals of Research and Writing
33C
The Supplements
Supplements update the material within the hardbound
volume.
The purpose of Am. Jur. 2d is to lead the researcher to primary
authority, a case or statute. However, before locating the
primary authority cited in Am. Jur. 2d, we must make sure
that the material is up-to-date. Am. Jur. 2d provides supplements to its main volumes primarily in the form of pocket
parts. The researcher should research the same topic and
section number in the pocket part as he researched in the
main volume. (If Witnesses §§ 52, 67, and 127 were researched in the main volume, Witnesses §§ 52, 67, and 127
should also be researched in the pocket part.) The researcher
should also be aware that if a pocket part becomes too thick,
the publisher may update volumes by using a separate
softbound supplement.
ASSIGNMENT 2.10 D
Locate the supplement in the volume you are researching and answer these questions.
1. How does Am. Jur. 2d update material in the volume
you are researching?
2. Where does the researcher look in the supplement?
 under section numbers from the Title Index only
 corresponding topic and section numbers
 only corresponding section numbers
3. Was there additional material for your research topic
in the supplement? If yes, what kind of material?
34
Essential Skills for Paralegals: Volume II
New Topic Service
Am. Jur. 2d’s New Topic Service provides
information on the most recent areas of law.
When the AIDS virus first became a matter of legal concern,
cases and discussions regarding AIDS were placed under such
various topics as Physician and Surgeon, Diseases, etc. At
some point, however, the legal ramifications of the AIDS
health crisis might become important enough to deserve a
separate topic. The publisher can’t magically insert new topics into previously printed volumes, so there must be a way
for Am. Jur. 2d to provide the researcher with this material.
The New Topic Service provides this information. It may be
found in two forms:
-a three-ring binder
-a hardbound supplement
In whichever form it is found, the New Topic Service is usually found at the end of the main volumes near the index.
ASSIGNMENT 2.10E
Using the topic you have been researching, answer the
following questions:
1. Does your library provide the New Topic Service?
2. Is the New Topic Service in your library a hardbound
supplement or three-ring binder?
3. Is there a new topic relevant to your research assignment?
Part One: Fundamentals of Research and Writing
35C
§ 2.10A
1.
AM. JUR. 2D EXERCISE
The Am. Jur. 2d index leads to which of the following?
a. volume number, series, page number
b. a topic and section number
c. a topic and key number
2.
Does the index have a supplement?
 yes
3.
 no
Does the commentary refer to the footnotes?
 yes
 no
4.
What kind of research assistance do the footnotes provide?
5.
How does Am. Jur. 2d update material within the main volume?
6.
Where does the researcher look in the supplement?
under section numbers from the title index only
 corresponding topic and section numbers
 only corresponding section numbers
7.
36
Am. Jur. 2d is a part of what research system?
Essential Skills for Paralegals: Volume II
Diagram 2c: Screen Shot of Am. Jur. 2d
Part One: Fundamentals of Research and Writing
37C
§
2.10b WESTLAW INTERACTIVE STUDY:
AMERICAN JURISPRUDENCE, 2d
Students who do not have access to a law library should complete this assignment. It is
designed to recreate exercises 2.10 and 2.11 covering legal encyclopedias. At the time
of this publication, both Lexis and Westlaw provided on-line access to American
Jurisprudence, 2d (2.10) but not to Corpus Juris Secundum (2.11).
Setting up your Tabs:
1. On the Westlaw Home page, click on the Add/Remove Tabs link
and select the Law School tab (if you haven’t already done so).
2. Under the Law School tab, click on American Jurisprudence
Entering your Search Query
In both Lexis and Westlaw you will be taken to a page with a text box. Check the
“Natural Language” tab, then type in a question or statement relevant to your research
topic. An example of a natural language query might be:
husband and charged and rape or “sexual assault” and wife or spouse
The above query contains words precisely relevant to the topic being researched. It is
concise and contains key words separated by the word “and.” Synonyms are separated
by the word “or,” or a simple space (which the computer reads as “or”). After entering
your query you can check the Thesaurus for suggested terms, or click “Search.” You will
be provided with links to relevant sections of Am. Jur. 2d.
Read the description after each link. Try to find a result that is relevant to your search
query.
You may also notice that on the right column Westlaw provides links to additional relevant
sources. These can be very helpful, especially if your results don’t seem relevant, but be
careful not to get sidetracked. For now, concentrate on the results of your query. Following
is an example of a search results page:
38
Essential Skills for Paralegals: Volume II
The page that appears will look very much like the book version of the encyclopedia,
with commentary at the top, small superior numbers (referring to the footnotes) within
the commentary, and the footnotes at the bottom of the page. Terms from the query
are highlighted. The footnotes lead to other authorities, mostly primary (law). Read the
commentary noting any footnote references. If a footnote appears to be relevant, click
on the link in the footnote and you will be taken directly to the authority.
Educate yourself and then find the law
Use any relevant commentary to educate yourself as to the subject matter. The eventual
goal, though, will be to locate primary authority. Let the most relevant commentary lead
you to the footnotes, and let the footnotes lead you to your goal: cases and statutes.
Part One: Fundamentals of Research and Writing
39C
§
2.10c LEXIS INTERACTIVE STUDY:
AMERICAN JURISPRUDENCE, 2d
Students who do not have access to a law library should complete this assignment. It is
designed to recreate exercises 2.10 and 2.11 covering legal encyclopedias. At the time
of this publication, both Lexis and Westlaw provided on-line access to American
Jurisprudence, 2d (2.10) but not to Corpus Juris Secundum (2.11).
Choosing your Database
1. Click on the Search tab.
2. Within the database list in the Look for a Source box, locate the Secondary Legal
section in the right column.
3. Click on the Jurisprudence & ALR link.
4. Click on the American Jurisprudence 2d link.
Entering your Search Query
5. Check the “Natural Language” button, then type in a question or statement relevant
to your research topic. An example of a natural language query might be:
husband and charged and rape or “sexual assault” and wife of spouse
The above query contains words precisely relevant to the topic being researched. It is
concise and contains key words separated by the word “and.” Synonyms are separated
by the word “or,” or a simple space (which the computer reads as “or”). After entering
your query you can check the Suggest Terms link for more terms, or click “Search.” You
will be provided with links to relevant sections of Am. Jur. 2d.
40
Essential Skills for Paralegals: Volume II
6. Read the description after each link. Try to find a result that is relevant to your search
query. Click on the link and you will be taken to that topic and section of Am. Jur. 2d.
The page that appears will look very much like the book version of the encyclopedia,
with commentary at the top, small superior numbers (referring to the footnotes) within
the commentary, and the footnotes at the bottom of the page:
Terms from the query are highlighted. The footnotes lead to other authorities, mostly
primary (law). Read the commentary noting any footnote references. If a footnote
appears to be relevant, click on the link in the footnote and you will be taken directly to
the authority.
Educate yourself and then find the law
Use any relevant commentary to educate yourself as to the subject matter. The eventual
goal, though, will be to locate primary authority. Let the most relevant commentary lead
you to the footnotes, and let the footnotes lead you to your goal: cases and statutes.
Part One: Fundamentals of Research and Writing
41C
Diagram 2d: Screen Shot of C.J.S.
42
Essential Skills for Paralegals: Volume II
The Constitution was not made to fit us like a straitjacket. In its elasticity lies
its chief greatness.
— Woodrow Wilson
§
2.11a INTERACTIVE STUDY:
CORPUS JURIS SECUNDUM
C.J.S. is published by West Publishing
Company and is part of the Key Number System.
Corpus Juris Secundum is a national legal encyclopedia,
designed to provide at least a little information about almost every area of law. The encyclopedias have two basic
goals:
-To educate the researcher.
-To lead the researcher to primary authority.
C.J.S. educates the researcher by commenting upon an area
of law. Within the commentary are footnote reference numbers (example: 24). These references lead the researcher to
the cases and statutes provided in the footnotes at the
bottom of the page, guiding him to primary authority.
C.J.S. discusses the law and may be quoted, but it is not
the law. Therefore, C.J.S. is secondary authority.
The Index
The C.J.S. General Index is an excellent place to begin
your research. This multi-volume, softbound index can
usually be found at the end of the main volumes. Since
legal encyclopedias are arranged topically, the index will
lead us not to a volume and page number, but to a topic
and section number. (For instance, Witn § 442 in the
general index would tell the researcher to find the main
C.J.S. volume covering the topic of Witnesses and to
turn to Section 442.)
Part One: Fundamentals of Research and Writing
43C
Ours is a government of liberty by, through, and under the law. No man is
above it, and no man is below it.
— Theodore Roosevelt
ASSIGNMENT 2.11 A
Using the C.J.S. general index, answer these questions.
1. How many volumes make up the C.J.S. General Index?
2. Is your research topic covered in the index?
 yes
 no
3. The C.J.S. index leads to which of the following?
a. volume number, series, page number
b. a topic and section number
c. a topic and key number
4. Does the index have a supplement?
 yes
 no
5. If yes, where is it?
6. Is your topic covered in the supplement?
 yes
 no
7. Provide a cite from the index to the C.J.S. main volumes.
44
Essential Skills for Paralegals: Volume II
The Main Volumes
The General Index leads the researcher to the
main volumes of C.J.S.
After obtaining a topic and section number from the
General Index, the researcher must find the main volume covering the topic. Then the specific section number is found. After the section number, C.J.S. will provide a boldface, short statement of the subject matter, followed by the discussion of the subject matter.
If any passage is relevant, the researcher should refer
to the footnote that corresponds to the superscript
(footnote reference) in the discussion.
ASSIGNMENT 2.11 B
Locate the volume and section number under
your topic, as found in the index, and answer
these questions.
1. What is the subject matter under your topic
and section number? (There should be a short,
boldface statement.)
2. Does the discussion provide any footnote
references?
 yes
 no
3. What kind of research assistance do the footnotes provide?
4. Provide at least one case or statute from the
footnotes:
Part One: Fundamentals of Research and Writing
45C
Every direct authority known to us is against us; nevertheless, we are right and
these authorities are all wrong, as time and further judicial study of the subject
will manifest.
— Logan E. Bleckley
The Supplements
Supplements update the material within the
hardbound volume.
C.J.S. provides supplements to the main volumes,
primarily in the form of pocket parts. The researcher
should research the same topic and section number
in the pocket part that she researched in the main
volume to ensure the material is up-to-date. Again, if
a pocket part becomes too thick, the publisher may
use a separate, softbound supplement.
ASSIGNMENT 2.11 C
Locate the supplement in the volume you are
researching and answer these questions.
1. How does C.J.S. update material in the volume you are researching?
2. Where does the researcher look in the supplement?
 under section numbers in the Title Index only
 corresponding topic and section numbers
 only corresponding section numbers
3. Was there additional material for your research topic in the supplement?
4. If yes, what kind of material?
46
Essential Skills for Paralegals: Volume II
§
1.
2.12 C.J.S. EXERCISE
The C.J.S. index leads to which of the following?
a)
b)
c)
2.
volume number, series, page number
a topic and section number
a topic and key number
Does the index have a supplement?
 yes
 no
3.
How does the commentary refer to the footnotes?
4.
What kind of research assistance do the footnotes provide?
5.
How does C.J.S. update material within the main volume?
6.
Where does the researcher look in the supplement?
__ under section numbers from the title index only
__ corresponding topic and section numbers
__ only corresponding section numbers
7. C.J.S. is a part of which research system?
Part One: Fundamentals of Research and Writing
47C
§
2.11b WESTLAW INTERACTIVE STUDY:
CORPUS JURIS SECUNDUM
C.J.S. is not included in database selections within Westlaw or Lexis. However, Westlaw does refer to C.J.S. in its search results. Think of it as a kind
of “back door” into Corpus Juris Secundum. Lexis does not provide this “back
door.”
1. After searching within another authority (such as Am. Jur. 2d) look for
C.J.S. links in the right-hand column. Click on any relevant link.
2. The relevant section of C.J.S. will appear. As with Am. Jur. 2d the commentary is
studded with footnote references, which lead to primary authority.
48
Essential Skills for Paralegals: Volume II
chapter 3
The Fundamentals of Legal Writing
§ 3.1
THE UNIFIED THEORY OF WRITING
No matter what legal documents the writer is preparing, the theory of writing remains unchanged.
Use existing authority to create new documents.
This concept is very important, because all the court
cares about is the law. What the lawyer or paralegal
thinks is irrelevant. All that matters is the law.
In any legal writing, the following rules apply:
•
Never rely on your own opinion. Don’t
use the words I or my. Instead say,
“Our position should be... ” or “It is
obvious that... ”
•
Always rely on authority, preferably
primary authority.
•
Secondary authority, such as legal
treatises, may be cited, but law
always supersedes non-law.
•
Write concisely, thoroughly applying
the authority to your client’s facts.
•
Reread and check your writing for
grammatical errors.
Always remember that you don’t create the law; you
simply find and apply it.
These rules apply even in the creation of such mundane
documents as a client retainer agreement letter or a
request to a hospital to provide records. Use existing
documents, such as forms, form books, and templates,
to create new, modified documents. Don’t reinvent the
wheel!
Part One: Fundamentals of Research and Writing
49C
Once get a smell o’ musk into a draw, An’ it clings hold like precedents in law.
— James Russell Lowell
§ 3.2
FORMS OF LEGAL WRITING
Each type of legal writing has a specific function. This
chapter will concentrate on the preparation of a legal
memorandum, but it is helpful to be able to distinguish
the functions of different legal documents.
correspondence
Letters and e-mail between attorneys or paralegals and
clients make up the bulk of correspondence. There may
also be correspondence with witnesses, businesses or
agencies, or even potential adversaries.
pleadings
These documents are generally fact-based, not law-based.
The writer prepares documents that lay out specific facts
that support his position in litigation or criminal proceedings. It is in motions and at trial that the law is applied to
the facts in the pleadings.
discovery
These documents are also fact-based, not law-based. The
primary purpose of discovery is to expose facts relevant to
litigation, such as what really happened, or what witnesses
the opposition intends to call during trial. There may be
requests, however, for the law that the opposing party
intends to argue at trial.
motions
Motions, such a request for a summary judgment, seek to
have the court address a procedural issue.
briefs and memoranda
These documents argue legal issues and are, therefore,
law-based. Internal memoranda are objective, looking at
both sides of the legal question. External memoranda (such
as trial briefs) attempt to persuade the reader and only
argue law that is favorable to the client.
50
Essential Skills for Paralegals: Volume II
§ 3.3
CORRESPONDENCE: DEMAND LETTER
There is no single correct form for a demand letter and no
statutory requirements that must be followed. Some states
have specific rules covering demand letters in collection
cases, but a good demand letter always informs the recipient of the matter in controversy and the sum of money
demanded.
The concept called “exhaustion of remedies” means that at
all steps of a given dispute, every possible solution or remedy has been tried. A good demand letter can fulfill this
obligation. The person who eventually files suit with the
court wants to be able to say, “Your Honor, I tried to ask for
my money without involving the court. Here’s the demand
letter to prove it!”
In some jurisdictions, but not all, adherence to this concept
can go a long way toward establishing an argument for the
award of attorney’s fees. If the amount of money won at
trial exceeds the amount requested in the demand letter,
the argument for attorney’s fees is much more likely to be
successful.
To pen a successful demand letter, one should:
1.
2.
3.
4.
Be clear and straightforward.
Not argue the case in the letter.
Provide documentation to establish the claim.
Provide documentation to establish the damages.
1. Be clear and straightforward.
Sometimes, less is more. Don’t get bogged down in
details. You don’t have to provide exact details and
facts. Never make up numbers or facts.
For example, if the matter was a car accident, don’t
provide the estimated speeds, the models of the cars,
the time and weather conditions, or the names of
witnesses who viewed the event. Simply set forth the
claim: On January 17, 2005, Mr. Hayes ran a red light
at the intersection of Main Street and Second Street,
causing a collision with Mr. Jones.
Part One: Fundamentals of Research and Writing
51C
I do not suppose that civilization will come to an end whichever way this case is
decided.
— Oliver Wendell Holmes, Jr
Don’t explain why a specific request for damages is
being made. Just itemize the amounts and add up
the total. A dispute about a specific damage belongs
in the courtroom, not in the demand letter.
Upon the reading of the document, the recipient
should be able to clearly identify two things: what
allegation is being made (the claim), and how much
money is being demanded (damages). If the reader
can’t remember those two things after reading the
letter once or twice, the letter should be rewritten.
2. Don’t argue in the letter.
In other words, don’t feel as if you have to prove
your case in the demand letter, because you don’t.
Argument involves explanation, reasoning, and conclusion. Not only is arguing not required in a demand
letter, but arguing also might give away strategies
the attorney intends to use at trial.
Besides, arguments should be addressed to the court,
not the other party.
3. Provide documentation to establish the claim.
Legal Junk Food
DEFENSE COUNSEL
“So if I hit the
prosecutor at this very
moment and he fell over
the back of this railing,
hit h is head, and a
subdu ral hema toma
immediately began to
form, the blood that was
leaking into the space
would have essentially
the same components
as the blood leaking into
his teeny little brain?”
52
The claim is the reason for the controversy. While
not required in a demand letter, documentation can
act as a “shot across the bow,” making the opposing
party aware that the matter is serious and provable.
• If an escalator malfunctions in a department store,
injuring the rider, the claim is the failure to properly maintain the escalator. Documentation of the
claim might include a witness statement.
Essential Skills for Paralegals: Volume II
• If a passerby is injured when he steps on a
roller left on a sidewalk in front of a house,
the claim is the negligence of the homeowner.
Documentation might be a picture of the
scene, including the roller skate.
• A store sells a defective product and refuses
to provide a refund or replacement. The claim
is defective merchandise. Documentation
might include the sales receipt.
Remember, documentation’s only role at this point is
to establish that the event occurred. Don’t try to
prove your case in the demand letter. You may have
other documentation, but don’t provide it with the
letter.
4. Provide documentation to establish damages.
Documents to establish damages in a demand letter are
more important than those establishing the claim. No money
will be granted at a trial unless damages can be established. If the documentation provided in the demand letter is clear and reasonable under the circumstances, the
other party may choose to pay the damages without a
lawsuit. Receipts, invoices, bills, accounting statements
and hospital records make excellent documentation.
ASSIGNMENT 3.3A
Review the following example demand letter. If this
assignment is relevant to your client’s legal matter, prepare
a demand letter on your client’s behalf, giving the
defendant an opportunity to remedy the matter without
going to trial. You may either assume the attorney has
provided the amounts or ask your instructor to set
damages. Don’t forget to attach your time sheet.
Part One: Fundamentals of Research and Writing
53C
Diagram 3a: Demand Letter
Dear Mr. Smith:
This is a demand for payment for injuries
suffered by John Doe. Enclosed are the following:
1.
Mercy Ambulance
4/24/04
Billing, transport report
2.
University Medical Center 4/29/04
Admit/discharge summary
3.
Dr. Henry Morpheus
Billing, office notes
4.
Emerg. Med. Billing
5.
ABC Radiologists Billing $1,348.00
6/15/04
$2,485.00
You will recall that John Doe was the driver
in a vehicle going west on Main Street when Mr.
Smith failed to yield the right of way at a stop
sign, and struck the vehicle driven by Mr. Doe,
causing the injury and damages indicated.
As indicated by the records, there are no
preexisting conditions for which Mr. Doe was being treated, nor did he have any restrictions in
his day-to-day activities at home or employment
at Mail Boxes Etc. prior to this event.
Enclosed are copies of photographs depicting the property damage to the automobile associated with this matter. Mr. Doe is not making any
lost-wage claim at this time. Inasmuch as documented care has plateaued as indicated, and insofar as there is no other contributory cause,
demand for resolution of this claim is made in
the sum of $3,833.00. Please review the materials
enclosed and respond in writing to this demand
within 20 days.
Very Truly Yours,
_______________________________
Bryson Justice, Attorney at Law
Bar No. 98-354
3482 Hartphill Drive
Memphis, TN
39203
54
Essential Skills for Paralegals: Volume II
In vain we call old notions fudge, And bend our conscience to our dealing; The
Ten Commandments will not budge, And stealing will continue stealing.
— James Russell Lowell
§ 3.4 CORRESPONDENCE: CLIENT
LETTER
Critics of legal representation often cite the lack of
communication between the attorney and the client
as a major problem. A paralegal can assist in
maintaining frequent and clear client communications.
When a paralegal communicates with anyone regarding
the case, she should notify the client of this
communication, preferably in writing. A copy of the
correspondence should be included in the letter to the
client.
Doing this will prevent misunderstandings, help the
client understand the representative process and
encourage him to feel more involved. The letter should
not be long and it does not need to explain every
action taken in the client’s behalf.
On the following page is an example of a simple
correspondence letter from a paralegal to a client.
ASSIGNMENT 3.4A
Prepare a letter informing your client that the
demand letter on the previous page has been sent
to the defendant. Keep track of your billable hours.
You may use one time sheet for both this client
letter and the previous demand letter. Attach your
time sheet to your finished assignment.
Legal Junk Food
Terry Johnson had no trouble
identifying the two men who
burglarized her Chicago apartment
at 2:30 a.m. on Aug. 17, 1981. All
she had to do was write down the
number on the police badge one of
them wore and the ide ntity
number on the fender of their
squad car. The two officers —
Stephen Webster, 33, and Tyrone
Pickens, 32—had committed the
crime in full uniform, while on duty.
Part One: Fundamentals of Research and Writing
55C
Good men must not obey the laws too well.
— Ralph Waldo Emerson
Diagram 3b: Client Letter
John Doe
382 Simmons Lane
Memphis, TN 39273
February 12, 2005
Dear Mr. Doe,
Attached please find a copy of the demand
letter sent to Mr. Smith. If we have not
received payment from Mr. Smith within twenty
days, your attorney will contact you to
discuss your options.
Please feel free to contact me if you have
any questions regarding this matter.
Legal Junk Food
Eighteen-year-old Charles
A. Meriweather broke into a
home in northwest Baltimore on the night of Nov.
22, 1978, raped the woman
who lived there, and ransacked the house. When he
discovered that she had
only $11.50 in cash, he
asked her, “How do you pay
your bills?” She replied, “By
check,” and he ordered her
to write out a check for $30.
Then he upped it to $50.
“Who shall I make it out
to?” asked the woman, a
34-year-old government
employ ee. “Charl es A.
Meriweather,” said Charles
A. Meriweather, adding, “It
better not bounce, or I’ll be
back.” Meriweather was arrested several hours later.
56
Respectfully,
Joshua Hay-Adams
Paralegal
Essential Skills for Paralegals: Volume II
§ 3.5
TEN COMMANDMENTS OF WRITING
When preparing documents that interpret or relate legal
authority, such as a legal memorandum or trial brief,
always adhere to the following rules:
1.
Never rely on your own opinion.
2.
Always rely on authority, preferably
primary.
.
3.
Avoid using I or my. Instead, state
“We should argue . . .” or “Our position
should be . . .”
4.
Use complete sentences.
5.
As a rule, create short, clear sentences.
6.
Write in plain English. Don’t try to
“sound like a lawyer.”
7.
Never use an unfamiliar term. If you
use a legal term incorrectly, you
will look foolish.
8.
Unless you tell the reader that you have
altered an authority, quote word-for-word.
9.
If you emphasize a quote by bold,
italics, or underlining, tell the reader.
Place (emphasis added) at the end of the
quote.
10. Reread, checking for spelling and/or
grammatical errors.
Legal Junk Food
D.A.: What is the meaning of
sperm being present?
Witness: It indicates
intercourse.
D.A.: Male sperm?
Witness: That is the only kind
I know.
Part One: Fundamentals of Research and Writing
57C
§ 3.6
INTRODUCTION TO ANALYSIS
A legal memorandum, or brief, is a tool paralegals
and lawyers use to relate the applicability of specific
authorities to a client’s facts. The heart of any memorandum or brief is the analysis, the application of law
to fact. There is a specific structure to legal analysis,
often referred to as the IRAC method. The method
presented here is a modification of the IRAC method.
Issue introduction
Rule
Application
Conclusion
Every analysis is based on an issue, a question that
the court must answer. The issue should usually be
provided by the attorney. A single issue may analyze
one authority or many. If multiple authorities are analyzed within an issue, the writer should follow the
IRAC method for each, analyzing and apply each law
separately, not collectively. You do not need to tie
every case and statute together.
§ 3.7 COMPARING CASES
Legal Junk Food
Counsel: Is there anything
about your physical condition
that might make it difficult for
you to serve in this case?
Juror: No.
Counsel: You don’t have doctor
appointments today or the
next couple of days?
Juror: No.
Counsel: Do you have any
physical problems with your
pregnancy?
Assume you are working on a case involving assault
with a deadly weapon and that client is charged with
hitting a man with a baseball bat. You find a case in
the law library in which a man attacked his brotherin-law with a walking cane. You want to compare
those facts with your client’s.
Comparing a case in which the deadly weapon was a
shotgun (instead of some sort of stick) would not be
nearly as relevant. The fact that in the case of the
walking cane, the defendant was also charged with
theft would also be irrelevant. Discuss only the relevant facts. After addressing the similarities and differences, you must discuss how the court held and
how that decision might influence the court in your
client’s case.
Juror: I’m not pregnant.
58
Essential Skills for Paralegals: Volume II
So long as governments set the example of killing their enemies, private
individuals will occasionally kill theirs.
— Elbert Hubbard
It is tempting to start the analysis by citing the case
being relied upon, saying something like “In Smith v.
Jones,” the court held....” But, the court’s ultimate
decision should be the focus of the analysis. Therefore, follow these steps:
Issue Introduction
Provide a statement introducing the issue, or
how courts have generally dealt with the issue.
Rule
The rule is the law or authority being cited. If
the authority is a case, the writer must inform
the reader of the facts of the case, then quote
the case. The quotation should provide some
insight into the legal logic of the court, often
called the court’s reasoning.
The Instant Case
The term instant case is
very common i n l egal
writing. It means your
client’s case, as opposed to
a case you have j ust
quoted. Your client’s case
may also be referred to as
“the case at bar,” or “the
matter before the court.”
Application
The most important part of the analysis. Apply
the law to your client’s facts, comparing the
two.
Conclusion
Determine the answer to the issue being analyzed.
This discipline, using each of these steps for each
authority analyzed, makes the process easier and
the final product stronger. The result is a product
that an attorney will recognize and respect.
Part One: Fundamentals of Research and Writing
59C
ISSUE
Can a baseball bat be considered a deadly weapon?
1. ISSUE INTRODUCTION
2. RULE
(Rule Facts)
(Rule Quotation)
3. APPLICATION
4. CONCLUSION
In cases involving assault with a deadly weapon, courts have
held that even objects not designed for assault can be considered deadly weapons. In the case State v. Hayden, 134 S.W.2d
442 (Tenn. 1977), the defendant was charged with attacking a
waiter with a walking cane after the waiter insulted the defendant’s
tipping habits. The defendant was convicted and the Supreme
Court of Tennessee affirmed the lower court’s decision. The
Supreme Court held that:
. . . it is not the intended design of the object that determines liability but the potential the object has to inflict serious bodily harm. By way of example, an assault with an
automobile may result in attempted murder charges being filed despite the fact that an automobile is certainly
not designed for murderous acts.
In the instant case, the defendant attacked with a baseball bat.
Although not designed with that intent, a baseball bat has even
more “potential . . . to inflict serious bodily harm” than does a
walking cane. It would therefore appear that our client committed an assault with a deadly weapon.
The Ellipsis
An ellipsis (. . .) tells the reader
that something has been left out.
If you start in the middle of a
sentence (or statute), begin with
an ellipsis:
. . . only the defendant can
file such a motion at this
time.
If you leave something out of
the middle of a sentence or
paragraph, tell the reader:
The defendant . . . did not
act in good faith.
§ 3.8 DISTINGUISHING CASES
When comparing a case, one tends to concentrate on the similarities. When distinguishing a case, highlight why the differences
in a case (1) may be relevant, or (2) make the case inapplicable.
Assume a case is found in which a man was determined not
guilty of assault with a deadly weapon after shooting his girlfriend
with a pistol. Does this case mean your client will be found not
guilty, since his weapon was even less deadly? Not necessarily.
You must determine whether there were any distinguishable facts.
Here is an example:
If you leave something out
at the end, inform the reader
using an ellipsis and a period:
The court ruled in favor of
the plaintiff. . . .
60
Essential Skills for Paralegals: Volume II
In law, it is good policy never to plead what you need not, lest you oblige
yourself to prove what you cannot.
— Abraham Lincoln
ISSUE
Can a baseball bat be considered a deadly weapon?
Of course, circumstances may dictate whether an event was actually assault.
In State v. Bird, 250 S.W.2d 382 (Tenn. Ct. App. 1980), the defendant was attacked by his girlfriend with a heated curling iron.
He was unable to escape. In self-defense, he picked up a loaded
revolver and shot the woman in the right leg. In that case, the
court ruled that the attack by the defendant did not constitute assault with a deadly weapon. The court of appeals upheld the trial
court’s decision, and reasoned that, “The court must consider
whether defendants, who are in situations that could result in severe physical injury to themselves, intend every act they engage
in to be deadly.”
Bird is distinguishable from the instant case in that there is no
claim of self-defense in our client’s case. He picked up the baseball bat and approached the victim from behind before hitting
him in the leg.
Therefore, State v. Bird should not be used as a defense in our
client’s case.
§ 3.9 EXERCISE IN ANALYSIS
Your client, Melissa, is suing her doctor, Mel Practice,
for negligence. The doctor failed to make sure his
nurse had removed a sponge from Melissa’s abdomen
during surgery. While it was the nurse’s duty to remove the sponge, Melissa is claiming that Dr. Practice
should have made sure the job was done. Dr. Practice
is claiming he is not responsible. Analyzing the case
French v. Fischer (found in Appendix C), address the
following issue:
Is the doctor liable for the negligent acts of the nurse?
1. ISSUE INTRODUCTION
2. RULE
(Rule Facts)
(Rule Quotation)
3. APPLICATION
4. CONCLUSION
Quotations
When quoting authority
of 50 words or more,
single space, indent on
both sides and separate
without
quotation
marks. When quoting
fewer than 50 words
use quotation marks
within the paragraph.
(Note: There are some
jurisdictions and/ or
attorneys who use 30
words as the defining
number.)
Part One: Fundamentals of Research and Writing
61C
§
3.10 ANALYZING STATUTES AND RULES
As discussed earlier, in legal analysis, the facts of each
case are compared to the issue at hand. Each comparison is followed by the application of the law (case) to
the client’s facts. When researching a statute or rule in
which there are no facts to compare, break the rule or
statute into elements and apply each element to your
client’s facts. If even one of the elements does not
apply, the entire statute or rule does not apply.
Statute: H.R.S. § 645.120
Any private verbal or written communication between a husband and wife is privileged, and a party possessing the privilege
(the accused) may not be required to testify, and may prevent the spouse from testifying.
Legal Junk Food
Counsel: Now, you also
testified that you tried to run
a test that the matter was
cocaine, is that right?
Police officer: I tried to run a
water test on it.
Counsel: What did the test
consist of?
Police officer: The substance
looked something like soap
powder, so we ran water in
the portable bar that was in
the room and the sergeant
tried to see what would
happen to the cocaine as the
water hit it.
Couns el:
supp osed
happened?
What
to
was
have
Police officer: If it was
cocai ne,
it
w ould
immediately have dissolved.
Counsel: What would have
happened if it was soap?
Police officer: It would have
dissolved.
62
Facts
Bob is married to Keri. In an elevator, Bob told Keri that
he had “two joints” in his pocket and asked whether
she wanted to smoke one. Unfortunately for Bob, a
plainclothes police officer was also in the elevator and
overheard the conversation. He arrested Bob for possession of a controlled substance. The D.A. wants Keri
to testify. Does Keri have to testify?
Breaking Rules into Elements
An attorney does not speed read when reviewing statutes and cases. Instead, the attorney reads very slowly,
breaking the law into elements. Do not underestimate
the importance of this technique. It will set you apart
from other paralegals.
‘And & Or’ Rule
When the word and appears, the paralegal should
separate the sections of the rule into different
elements. When the word or appears, keep those
sections together, since the element will apply if
either part applies.
We must now break the rule into elements.
Essential Skills for Paralegals: Volume II
Law is whatever is boldly asserted and plausibly maintained.
— Aaron Burr
1.
2.
3.
4.
5.
6.
Any private
verbal or written communication
between a husband
and wife
is privileged,
and a party possessing the privilege
(the accused) may not be required to
testify, and may prevent the spouse
from testifying.
Each of the first four elements is a requirement to the
applicability of the rule. They are called active elements.
The last two elements, however, are more instructional.
They inform what will happen if the previous active elements apply. They are called inactive elements or passive elements. Passive elements automatically apply.
Let’s see how each element applies:
1.
2.
3.
4.
5.
6.
Any private
This element does not apply, since the
communication was in an elevator with
others present.
verbal or written communication
This element applies because there was
such communication.
between a husband
This element applies because the
husband was involved.
and wife
This element applies since the wife was
involved.
is privileged,
This applies as a passive element.
and a party possessing the privilege
(the accused) may not be required to
testify, and may prevent the spouse
from testifying.
This applies as a passive element.
Application
Remember, if any element fails to apply, the entire statute does not apply. Since the first element above does
not apply, the statute does not apply. The wife must
testify.
Legal Junk Food
The court: Is there any
reason you could not serve
as a juror in this case?
Juror: I don’t want to be
away from my job that
long.
The court: Can’t they do
without you at work?
Juror: Yes, but I don’t want
them to know!
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63C
The trial lawyer does what Socrates was executed for, making the worse
argument appear the stronger.
— Irving R. Kaufman
We now know that the statute does not apply. To
analyze the statute within a memorandum or brief,
the author should use the same analytical system as
with case law, although there are no “facts” to the
statute. In applying the statute, the author should
focus on any element that does not apply. If all elements apply, discuss in detail how they apply. The
following is an example of statutory analysis.
Issue
1. Can a wife be forced to testify against her
husband?
Legal Junk Food
Juror: Your Honor, is it proper
to ask the interpreter a question? I’m uncertain about the
word lavado. You say that is a
bar.
The court: The court cannot
permit jurors to ask questions
directly.
Juror: I understood it to be a
restroom. I could better believe
they would meet in a restroom
rather than a public bar if he is
undercover.
The court: If you have any misunderstanding of what the witness testified to, tell the court
now what you didn’t understand
and we’ll place theJuror: I understand the word
lavado. I thought it meant
“restroom.” She translates it
as “bar.”
Analysis
Statutory authority addresses the issue of spousal
communications. H.R.S. § 645.120 states:
Any private verbal or written communication between a husband and wife is privileged, and a party possessing the privilege (the accused) may not be required to
testify, and may prevent the spouse from
testifying.
The authority above does not apply to our client’s
situation. Although the communication in question
was indeed “verbal communication” between a “husband and wife,” the statute requires that the communication be “private.” In our client’s case, the discussion took place in an elevator. It is doubtful that a
court would consider private any communication taking place in such a confined place. There can be little
expectation of privacy under such conditions. Therefore, the wife in the matter above will most likely
have to testify regarding the conversation.
Interpreter: The jurors are not
to listen to the Spanish but to
the English. I am a certified
court interpreter.
Juror: You’re an idiot.
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Essential Skills for Paralegals: Volume II
§
3.11 ANALYZING STATUTES EXERCISE
Break the following rules into elements. Apply them.
Exercise A
Colo. Rev. Stat. § 29-10-220
When presenting evidence to the court, the original
document shall be presented, unless the original
document is no longer available through no fault of
the party moving to have the evidence admitted.
Facts: Your client wants to have a birth certificate
admitted into evidence. He was born in Italy. The
original birth certificate was destroyed by a flood.
Can he introduce a copy entered into evidence?
Exercise B
O.C.R. § 331.93
If parties are from different states or countries,
and if the amount of damages requested exceeds
seventy-five thousand dollars, either party may move
to have the matter transferred to federal court.
Facts: Your client is from Oregon, and got into a car
accident in Portland with a man from New Mexico.
The plaintiff is suing for $75,000, and has moved to
have the matter heard in federal court. Will his
motion be approved?
Exercise C
Legal Junk Food
Statute: H.R.S. § 645.120
Any private verbal or written communication between a husband and wife is privileged, and a party
possessing the privilege (the accused) may not be
forced to testify, and may prevent his or her spouse
from testifying.
Facts: Your client has been separated from his wife
for more than a year. During the separation, he told
his wife that he had robbed a bank. His wife called
the police and reported him. The prosecutor wants
to call the estranged wife to testify. Will she be
allowed to take the witness stand?
The judge was finishing his
oral charge to a jury. Being a
judge who keeps up with the
times, he pointed out in the
verd ict for m where the
“foreperson” should sign the
verdict.
When the verdic t was
deli vered l ater to the
cour troom d eputy, four
persons had signed their
names on the form.
The judge now uses the oldfashioned word foreman.
Part One: Fundamentals of Research and Writing
65C
§ 3.12
HELPFUL PHRASES IN LEGAL WRITING
The following are helpful phrases to get you started in each stage of the
analytical process, using a modified IRAC structure:
Issue Introduction:
1. Courts have generally held...
2. In cases involving ___, courts have ruled that . . .
3. The rule of law is that . . .
4. Authority has established that . . .
Rule Facts:
1. In Abe v. Jones, . . .
2. We find similar facts in Abe v. Jones, where . . .
3. In Abe v. Jones, we find that . . .
4. The case of Abe v. Jones is distinguishable from our client’s case . . .
5. In Abe, . . . (state facts)
Rule Quotation:
1. The court held . . .
2. The court opined . . .
3. The court ruled . . .
4. The ruling of the court was that . . .
5. The court cited Smith v. Jones in holding . . .
6. The court relied on additional authority in ruling . . .
Apply the law:
1. This case applies because . . .
2. In the instant case . . .
3. In the case at bar, . . .
4. The above authority applies to the instant case . . .
Conclude:
1. Therefore, our client should not be found liable . . .
2. Based on the cited authority, Dr. Practice . . .
3. It would appear that our client is . . .
4. Due to the similarities between the cited and the instant case, . . .
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Essential Skills for Paralegals: Volume II
§ 3.13
MEMORANDUM FORM
While there are many forms of interoffice memos, they
all include the following in one form or another:
1.
2.
3.
4.
5.
6.
7.
caption
assignment
facts
issues
analysis
conclusion
recommendation
The following is a simplified example of a legal
memorandum.
MEMORANDUM
TO:
Supervising Attorney
FROM:
Lucy Legaleagle, Paralegal
DATE:
01/25/06
RE:
Sam Slime
________________________________________
ASSIGNMENT
You asked me to review cases and statutes provided to
determine the strength of our client’s case.
FACTS
Our client, Sam Slime, is being sued for breach of marriage
Caption
Basic information
about the
memorandum
Assignment
Restate the
attorney’s
instructions
about the
assigned task
Facts
Facts of your
client’s case
promise by Paula King. Sam and Paula met in October, 2003.
After they dated for some time, Paula proposed and Sam
agreed to marry her. Sam claims that he was broke at the time,
and therefore, was under duress when he agreed to the
engagement. They set the wedding date for November, 2005.
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67C
Six months later, Sam won the state lottery. With his financial
problems alleviated, Sam could see that he did not want to marry
Paula and soon broke off the engagement. Paula has filed suit
in Denver District court.
Our client claims that he had every right to break off the engagement. It seems that Sam had always believed that a couple should
wait until married to engage in sexual intercourse. Sam claims
that shortly after they became engaged, Paula seduced him not
just once, but several times. Our client says he could never marry
a woman with such a lack of morals.
Issues
Questions that will be
answered at court. The
attorney should provide
them.
ISSUES
1. Is the fact that the parties engaged in sexual intercourse after
their engagement relevant to this case?
2. Did our client violate Colo. Rev. Stat. 19-22-302?
Analysis
The application of the
law to your client’s
facts.
ANALYSIS
1. Is the fact that the parties engaged in sexual intercourse
after their engagement relevant to this case?
ANALYTICAL PROCESS
Courts generally have held that sexual intercourse between an
1. ISSUE INTRODUCTION
engaged couple does not bar suit on grounds of breach of promise. In Fleetwood v. Barnett, 11 Colo. App. 77, 52 P. 293 (1898),
2. RULE
the defendant asked the plaintiff to marry him and the plaintiff
Facts of the authority
agreed. The wedding date was to be two years following the
engagement. Soon after the engagement, the couple was unable to resist the “temptations of the flesh.” The next day, the
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Essential Skills for Paralegals: Volume II
defendant informed the plaintiff that he no longer considered
himself bound by his promise to marry her, especially considering the unethical behavior by the plaintiff the previous
night in allowing the defendant to take advantage of her. The
court held:
This court recognizes that relationships between
individuals are complex, and often defy simple
analysis. However, after reviewing the facts presented in this matter, we determine that illicit intercourse between the parties after promise of marriage shall not bar recovery for breach of that promise. (Emphasis added)
This case applies because in both cases sexual intercourse
following promise of marriage is the primary issue. The ap-
Quote the authority
3. APPLY THE LAW TO
THE CLIENT’S FACTS
parent differences between Fleetwood and the instant case
are that Fleetwood occurred in 1898, when a promise of marriage was taken more seriously, and that the defendant proposed to the plaintiff in Fleetwood, whereas the plaintiff proposed to the defendant in our client’s case. However, while
the date would certainly encourage research for more recent
Note:
This is the most important
part of the analysis. A oneor two-sentence application
of the law is most likely insufficient! Be thorough in
your application of the law.
rulings, neither of these differences would, in and of themselves, render Fleetwood irrelevant. It would therefore appear
that our client should not rely on his sexual activity with the
4. CONCLUDE
plaintiff after his engagement to her as a defense.
Part One: Fundamentals of Research and Writing
69C
ANALYTICAL PROCESS
1. ISSUE INTRODUCTION
2. RULE
Quote the authority
3. APPLICATION
2. Did our client violate Colo. Rev. Stat. 19-22-302?
While case law appears to work against our client, statutory
authority is not so clear. Colo. Rev. Stat. 19-22-302 is
relevant to the issue at hand, and states:
Any person who proposes marriage to
another is deemed to have entered into a
valid contract and, therefore, is bound by
that agreement as to any lawful commitment.
This statute is only binding upon the “person who proposes
marriage.” Since it was the plaintiff in the instant case who
proposed marriage, it is she who is bound by that proposal,
not our client. Therefore, our client did not violate Colo. Rev.
4. CONCLUSION
Stat. § 19-22-302.
CONCLUSION
Conclusion
Summarize the facts in
one or two sentences,
restate the law in one
or two sentences, then
conclude by answering
the issue in question.
1. In this case, our client accepted a proposal of marriage,
then claimed that sexual intercourse following the
proposal caused him to reconsider. Fleetwood v.
Barnett establishes that post-engagement intercourse
does not prevent a plaintiff from recovering for breach
of that promise. Therefore, sexual intercourse following
promise of marriage should not be relied upon as a
defense to breach of that promise.
2. Our client accepted a proposal of marriage from the
plaintiff. The statute cited applies only to the person who
proposes marriage. Thus, our client did not violate the
statute in question.
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Essential Skills for Paralegals: Volume II
RECOMMENDATION
While my instructions were to limit myself to the
authority provided, further research on these issues
before trial would certainly be advisable. Although
our client was not in direct violation of the statute cited,
it is doubtful that our client would succeed in a jury
Recommendation
Suggest next steps, or
future actions.
Note:
Be careful not to analyze
within the conclusion or
recommendation!
trial, since case law would hold against our client. All
efforts should therefore be made to settle this case
out of court.
Legal Junk Food
A Florida state prison inmate filed a civil rights suit over allegedly
unsanitary prison conditions. He sent the local federal court a plastic
envelope containing several dead roaches as evidence of roach
infestation. Assuming it was an isolated incident, court officials
thought little of the gesture.
Several months later, the prisoner filed a motion for summary
judgment and included a separate note that stated, “Dear Mr. Clerk:
Please find enclosed, one (1) mouse and mark as Exhibit M . . . and
a motion to the honorable judge.”
Court employees dutifully removed the dead rodent from its plastic
coffin, placed it in a jar of formaldehyde and filed it with the clerk to
preserve the chain of evidence.
But things really got out of hand when the prisoner filed a motion for
acceptance for further evidence, and included a less carefully
preserved mouse. This exhibit was “a little riper” than the previous
specimens, according to court staff. The judge put an end to the
affair, ordering the prisoner to content himself with sending written
descriptions of such physical evidence. In addition to probably violating
U.S. postal regulations, the judge pointed out, any further such
evidence would prompt him to dismiss the case.
Part One: Fundamentals of Research and Writing
71C
§
3.14 EFFICIENCY IN WRITING
The general public is often befuddled by the confusing
manner in which lawyers communicate among themselves
and with the court and the public. Referred to as “legalese,”
this inefficient means of writing is too often used by
attorneys and paralegals. Lawyers, legislatures and courts
have tried to write in “plain English.” But legalese is still
prevalent, sometimes as an attempt to demonstrate
superiority, but more often as nothing more than a bad
habit.
There are technical legal terms that must become part of
the paralegal’s vocabulary. But, whenever possible, write
in plain English. Don’t try to sound like a lawyer. Write
clearly and efficiently.
Exercise 3.14A
The following are some examples of legal writing taken
from correspondence, motions, and pleadings prepared
by attorneys. Try to rewrite each of the examples without
the unnecessary verbiage.
Example 1 (from a motion to suppress)
The only option remaining for the defendant in the
matter before this court is to take advantage of the
full and complete limits of the privilege. He hereby
requests that the court deter the plaintiff from
further inquiring as to the communication defendant
has had with any other individual, whether written
or oral.
Example 2 (from a demand letter)
Regardless of the circumstance you now find yourself
in, full payment must be made henceforth. You are
responsible for all costs and interest accrued from
this date forward.
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Essential Skills for Paralegals: Volume II
§ 3.15
MEMORANDUM ASSIGNMENT
Using only the authority provided in Appendix B, prepare an interoffice memorandum analyzing the issues
listed below. If you were actually researching these
issues, you would want to rely heavily on authority
from your state. However, since this assignment is of
limited scope, you may use cases from any jurisdiction. Refer to “How to Write a Legal Memorandum” and
“Example of a Legal Memo.” Do not feel you must create the perfect memo the first time. An educational
experience is progressive and this is your first effort in
legal writing. In addition to the cases provided, you
may use a legal dictionary.
Three months ago your attorney hired you as her first
paralegal. She is concerned, however, about what tasks
and duties she may have you perform. You have already engaged in a couple of activities that she thinks,
in hindsight, may have been inappropriate. When a
client first came to the firm, your attorney asked that
you handle the initial interview. She told you to hear all
the facts, then convey to the client the attorney’s interest in handling the case. She also told you the specific
fees that would be charged, including the paralegal’s
and attorney’s hourly rates. You shared this information with the client at that initial meeting. Your attorney wants you to review some authorities to make a
determination.
She also wants to know whether she can ask you to
attend a settlement conference without her being
present and whether you would be allowed to accept or
reject certain proposals. She has always planned to
use you for this sort of activity, but now wants to make
sure there is nothing unethical about such delegation
of responsibilities.
Legal Junk Food
In Juvenile Court a complaint was filed against a
mother under the Welfare
and Institutions Code for
encouraging a minor to live
an “immortal” life.
Part One: Fundamentals of Research and Writing
73C
The issues you must analyze are:
1. Can a paralegal interview clients for the purpose
of providing the client with fee and representative
information?
2. Under what circumstances may a paralegal conduct a settlement conference?
Under the facts portion of the memorandum, provide a brief
description of the reason your firm is representing your
client, followed by an explanation of your attorney’s concerns regarding the scope of your duties.
Using the authorities provided, analyze the above issues.
For this exercise, some of the authorities are provided only
in part. For example, the entire case may not be presented, but the relevant material is there.
Keep track of your billable hours. Attach a copy of your
time sheet to the last page of the memorandum. After
your memorandum has been graded and returned, place
the document in the Work Product section of your client’s
file.
AUTHORITIES (found in Appendix B)
Students may also look up the following authorities in the law library or on-line.
In re Morin, 319 Or. 547, 878 P.2d 393 (1994)
Attorney Griev. Comm. v. Hallmon, 343 Md. 390, 681 A.2d 510 (1996)
People v. Milner, 35 P.3d 670 (Colo. 2001)
State Stat. 88.120
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Essential Skills for Paralegals: Volume II
The primary duty of a lawyer engaged in public prosecution is not to convict,
but to see that justice is done.
— Canon of Professional Ethics
§ 3.16
EXAMPLE OF AN INTEROFFICE MEMORANDUM
MEMORANDUM
TO:
FROM:
DATE:
RE:
Jeanne Wilkins, Esq.
Joshua Hay-Adams, Paralegal
March 19, 2003
The right of Tom Sayers to have his name placed on Jenny Saunders’
birth certificate as the natural father.
ASSIGNMENT
Research case law and review statutes to determine whether our client has the
right to have his name placed on the birth certificate of his two-year-old daughter,
Jenny Anne Saunders.
FACTS
Our client, Tom Sayers, is an eighteen-year-old high school senior. Tom and his
mother have asked that we review Tom’s parental status. Two years ago, Tom
became sexually involved with a classmate, Heather Saunders. Heather was
sixteen at the time, and Tom was fifteen. Heather became pregnant by Tom and
on September 3, 2000, Heather gave birth to a healthy girl. However, Heather
and Tom had broken up shortly after Heather became pregnant. Tom saw very
little of Heather during this time.
When Heather gave birth, Tom was not informed. Heather filled out the birth
certificate, naming herself as the mother and “unknown” as the father.
The
child’s name was listed as Jenny Anne Saunders. When Tom found out three days
later that Heather had given birth, he went to see Heather and the baby at her
house. Subsequently, Heather and Tom came to an informal agreement for Tom
to see Jenny one weekday per week and every other weekend. In addition, Tom
would pay Heather $50 a week in child support while he was still in high school.
So far, the informal agreement has worked very well.
Part One: Fundamentals of Research and Writing
75C
A man has never yet been hung for breaking the spirit of a law.
— Grover Cleveland
Two weeks ago, Tom was informed that Heather plans to get married in
November. While there is no indication of hostile feelings or plans on Heather’s
part to change the arrangement at this time, Tom and his mother are concerned
that Heather’s husband may want to adopt Jenny. Tom wants to know what
his rights are.
ISSUES
1.
Is it possible to have a new birth certificate issued with our client
named as father?
2.
Are there any guidelines for establishing paternity two years after the
fact?
ANALYSIS
1.
Is it possible to have a new birth certificate issued with our client
named as father?
According to both case law and statutory authority, it appears that Tom will be
declared Jenny’s natural father on her birth certificate. C.R.S. 13-21-201 states
as follows:
In the event that the name of the natural father of a child is
(a) not listed on the birth certificate, or
(b) incorrect on the birth certificate due to error, or
(c) incorrect on the birth certificate due to fraud,
the court, in its discretion, may order that a new birth certificate
be issued providing the correct name of the natural father once
the natural father’s identity has been determined. The new
certificate shall replace the original, nunc pro tunc.
Subsection (a) applies to our client. No name for the natural father was listed
on the original birth certificate. This statute provides for the issuance of a new
certificate “once the natural father’s identity has been determined.”
In addition, courts have held that it is in the interest of the child that the natural
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Essential Skills for Paralegals: Volume II
father’s identity be listed on the birth certificate when it is known. In Jacobs v.
Livingston, 143 U.S. 679 (1970), a mother tried to prevent the listing of the
natural father on the birth certificate of their newborn son. The couple was not
married and the father had been convicted of second-degree murder just prior to
the boy’s birth. He was sentenced to life in prison with the possibility of parole.
The mother asserted that it would be detrimental for the child to be “labeled and
stigmatized” by having a convicted murderer listed on his birth certificate as his
natural father. The court disagreed. In ordering the natural father’s name placed
on a new birth certificate, the court reasoned:
...while the court must pursue the best interests of the child, the
court cannot expect to shelter him from all mishaps or unjust
treatments life will present. None of us choose our parents.
Denying them does not change the fact that they bore us. This
child must have the opportunity to choose his relationship with
his father at some point in the future. The fact is that the
identity of the natural father is known . . . and must be provided
for in the appropriate records.
143 U.S. at 683.
Jacobs applies to our client’s case because not only the natural father, but the
child, has the right to have accurate and complete information regarding parenthood
provided in “appropriate records.” However, while the case and statute above
give the court the authority to replace the original birth certificate with one bearing
the father’s name, our client will have to prove, to the court’s satisfaction, that he
is, indeed, Jenny’s father.
2.
Are there any guidelines for establishing paternity two years after the
fact?
Courts have provided guidelines for determining paternity when paternity is in
dispute. In Henry v. Lowell, 335 U.S. 281 (1972), the United States Supreme
Court upheld the Supreme Court of Hawaii in naming the plaintiff as father of a
Part One: Fundamentals of Research and Writing
77C
...witnesses may commit perjury, but the smoke [from the flame] can not.
— Abraham Lincoln
child, despite the defendant mother’s objection. In that case, James Henry filed a suit
with the District Court of Hawaii to be named father of a little girl. James’ position was
that, despite the fact that paternity tests were “inconclusive,” he should be declared
the child’s father because of previous behavior by the mother, Karen. James asserted
that Karen encouraged the child to refer to him as “Daddy.” The court held:
Determination of the paternity of a child may be achieved in a
number of ways... First, the admission by both parents as to
paternity. Second, medical or scientific tests deemed accurate
and reliable by the court. Third, that a male individual is, over
an extended period of time, held out by the child’s mother as the
father and treated with an attitude consistent with the manner in
which a natural father would be treated....
335 U.S. at 284.
In our client’s case, Heather may now admit that Tom is Jenny’s father and be willing
to have Tom listed as Jenny’s father on a new birth certificate. If she resists, we
should suggest a medical paternity test which would most likely prove that our client
is Jenny’s father. In addition, Heather Saunders has certainly “held out” Tom as the
father of her child, as provided for in the Henry case. Heather has never denied Tom’s
paternity. Therefore, it appears that Tom will be able to have a new birth certificate
issued naming him as Jenny’s natural father.
CONCLUSION
1.
The court, at its discretion, may order a new birth certificate issued with
the natural father’s identity provided.
2.
Due to Heather’s consistent recognition of Tom as Jenny’s father, it
appears that establishing paternity will not be a problem.
RECOMMENDATION
We should advise our client to approach Heather in an amicable atmosphere and ask
whether she would be willing to have a new certificate issued.
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