Essential Skills
for
Paralegals
Volume II
Authority, Research and Writing
Daniel R. Barber
Published under limited usage authorization by
West Legal Studies
Publishing Company
Copyright © 2004
Essential Skills for Paralegals: Volume II
iC
Published under authority of
West Legal Studies
All Rights Reserved
Copyright © 2004
ii
Essential Skills for Paralegals: Volume II
Table of Contents
ESSENTIAL SKILLS FOR PARALEGAL
VOLUME TWO: AUTHORITY, RESEARCH AND WRITING
Table of Contents .................................................................................. iii
Acknowledgments ................................................................................... vi
Dedication ........................................................................................... viii
Paralegal Rules of Classroom Procedure .................................................... ix
PART ONE: FUNDAMENTALS OF RESEARCH & WRITING ........................ 1
Chapter 1: The Fundamentals of Authority ............................................. 5
§ 1.1 WHAT IS AUTHORITY? ........................................................... 5
§ 1.2 PRIMARY AUTHORITY ............................................................ 5
§ 1.3 USING CITATIONS TO LOCATE AUTHORITY............................... 9
§ 1.4 LOCATING A CASE WITH A CITATION .....................................10
§ 1.5 HOW TO READ A CASE .......................................................... 11
§ 1.6 FINDING STATUTES WITH A CITATION ....................................12
§ 1.7 HOW TO READ A STATUTE .....................................................13
Chapter 2: The Fundamentals of Legal Research ................................. 15
§ 2.1 THE SYSTEM OF LEGAL RESEARCH .......................................... 15
§ 2.2 INDEX RESEARCH .................................................................16
§ 2.3 INDEX SIGNALS ...................................................................17
§ 2.4 USING WORD ASSOCIATION .................................................. 18
§ 2.5 COMMON RESEARCH QUESTIONS ........................................... 20
§ 2.6 VISUALIZING THE BOOKS .....................................................21
§ 2.7 PUBLISHERS ........................................................................22
§ 2.8 LIBRARY SCAVENGER HUNT ASSIGNMENT ............................... 23
§ 2.9 INTERACTIVE STUDY: WORDS AND PHRASES ........................... 24
§ 2.10 INTERACTIVE STUDY: AMERICAN JURISPRUDENCE 2D .............27
§ 2.10a AM. JUR. 2D EXERCISE ....................................................... 33
§ 2.11 INTERACTIVE STUDY: CORPUS JURIS SECUNDUM ....................37
§ 2.11a C.J.S. EXERCISE.................................................................40
Chapter 3: The Fundamentals of Legal Writing ..................................... 41
§ 3.1 THE UNIFIED THEORY OF WRITING ........................................ 41
§ 3.2 FORMS OF LEGAL WRITING ...................................................42
§ 3.3 CORRESPONDENCE: DEMAND LETTER .....................................43
§ 3.4 CORRESPONDENCE: CLIENT LETTER ....................................... 47
§ 3.5 10 COMMANDMENTS OF WRITING .......................................... 49
§ 3.6 INTRODUCTION TO ANALYSIS ...............................................50
§ 3.7 COMPARING CASES .............................................................. 50
Essential Skills for Paralegals: Volume II
iiiC
§ 3.8 DISTINGUISHING CASES ......................................................52
§ 3.9 EXERCISE IN ANALYSIS ........................................................53
§ 3.10 ANALYZING STATUTES AND RULES.........................................54
§ 3.11 ANALYZING STATUTES EXERCISE ........................................... 57
§ 3.12 HELPFUL HINTS IN LEGAL WRITING ....................................... 58
§ 3.13 MEMORANDUM FORM ........................................................... 59
§ 3.14 EFFICIENCY IN WRITING ......................................................64
§ 3.15 MEMORANDUM ASSIGNMENT ................................................. 65
§ 3.16 EXAMPLE OF AN INTEROFFICE MEMORANDUM ......................... 67
PART TWO: RESEARCH & WRITING IN LITIGATION ............................ 73
Chapter 4: Citing Authority .................................................................. 75
§ 4.1 MANDATORY AND PERSUASIVE AUTHORITY.............................. 75
§ 4.2 AUTHORITY EXERCISE ........................................................... 77
§ 4.3 AUTHORITY DISCUSSION POINTS ...........................................77
§ 4.4 AUTHORITY EXERCISE ........................................................... 78
§ 4.5 REAL WORLD CITATIONS........................................................80
§ 4.6 PINPOINT CITATIONS ............................................................84
§ 4.7 PINPOINT EXERCISE ..............................................................85
§ 4.8 STAR PAGINATION .................................................................86
§ 4.9 AUTHORITY AND CITATIONS ................................................... 87
§ 4.10 AUTHORITY AND CITATIONS EXERCISE ..................................87
Chapter 5: Law Library Litigation Support ............................................ 89
§ 5.1 THE PARADOX OF LITIGATION ................................................ 89
§ 5.2 DEFINITIONS ........................................................................90
§ 5.3 FORM BOOKS ........................................................................90
§ 5.4 ASSIGNMENT: LOCATING FORM BOOKS .................................... 91
§ 5.5 EXAMPLE OF A FORM BOOK ....................................................93
§ 5.6 INTERACTIVE STUDY: AM.JUR. PROOF OF FACTS ....................... 94
Chapter 6: Litigation Documents .......................................................... 99
§ 6.1 THE SUMMONS .....................................................................99
§ 6.2 SUMMONS EXAMPLE ............................................................ 101
§ 6.2 THE COMPLAINT ................................................................. 102
§ 6.3 CAUSES OF ACTION ............................................................ 106
§ 6.4 CAUSES OF ACTION EXERCISE ............................................. 107
§ 6.5 ESTABLISHING CAUSES OF ACTION ...................................... 108
§ 6.6 THE CLAIMS ....................................................................... 110
§ 6.7 EXAMPLE OF A COMPLAINT .................................................. 112
§ 6.8 THE ANSWER ..................................................................... 116
§ 6.9 EXAMPLE OF AN ANSWER .................................................... 118
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Essential Skills for Paralegals: Volume II
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6.10 INTRODUCTION TO DISCOVERY ......................................... 120
6.11 THE INTEGRITY OF THE PROCESS ....................................... 121
6.12 INTERROGATORIES ........................................................... 122
6.13 ANSWERS TO INTERROGATORIES ....................................... 124
6.14 INTERROGATORY TECHNIQUES .......................................... 126
6.15 INTERROGATORY EXAMPLE ................................................ 128
6.16 REQUEST FOR ADMISSIONS ............................................... 131
6.17 RESPONDING TO REQUESTS ............................................... 132
6.18 REQUEST FOR ADMISSIONS TECHNIQUES............................. 135
6.19 REQUEST FOR ADMISSIONS EXAMPLE ................................. 137
6.20 REQUEST FOR PRODUCTION .............................................. 139
6.21 DISCOVERABLE MATERIALS ................................................. 139
6.22 NON-DISCOVERABLE MATERIALS ......................................... 139
6.23 RESPONDING TO PRODUCTION ........................................... 141
6.24 DEPOSITIONS ................................................................... 146
6.25 PREPARING FOR THE DEPOSITION ....................................... 146
6.26 DEPOSITION FOLLOW-UP ................................................... 149
6.27 DEPOSITION TRANSCRIPT .................................................. 153
6.28 EXAMPLE OF DEPOSITION DIGEST ....................................... 157
PART THREE: TRADITIONAL RESEARCH & WRITING ......................... 159
Chapter 7: Authority- Law Books ....................................................... 161
§ 7.1 THE FUNCTIONS OF LAW BOOKS .......................................... 161
§ 7.2 LAW BOOKS: SECONDARY & NON-AUTHORITY ....................... 162
§ 7.3 LAW BOOKS: PRIMARY AUTHORITY ....................................... 174
Chapter 8: Traditional Research Tools ............................................... 181
§ 8.1 WHERE SHOULD YOU BEGIN? ............................................... 181
§ 8.2 EXPANDING YOUR RESEARCH ............................................... 181
§ 8.3 LEGAL RESEARCH FLOW CHART ............................................ 182
§ 8.4 INTERACTIVE STUDY: SCAVENGER HUNT ............................... 183
§ 8.5 INTERACTIVE STUDY: AMERICAN LAW REPORTS ..................... 184
§ 8.6 WEST DIGESTS ................................................................... 196
§ 8.7 AN INTRODUCTION TO SHEPARD’S ........................................ 203
§ 8.8 SHEPARD’S CITATORS .......................................................... 207
§ 8.9 SHEPARD’S REVIEW ............................................................. 216
§ 8.10 FEDERAL CASE LAW RESEARCH ........................................... 218
§ 8.11 U.S. SUPREME COURT CASES .............................................. 218
§ 8.12 U.S. APPELLATE COURT CASES ............................................ 221
§ 8.13 U.S. DISTRICT COURT CASES .............................................. 222
§ 8.14 FEDERAL STATUTORY RESEARCH ......................................... 223
§ 8.15 STATE STATUTORY RESEARCH ............................................. 225
Essential Skills for Paralegals: Volume II
vC
Chapter 9: Notices, Motions and Briefs............................................... 227
§ 9.1 WHAT ARE MOTIONS? .......................................................... 227
§ 9.2 WHAT ARE NOTICES? ........................................................... 229
§ 9.3 WHAT ARE BRIEFS? ............................................................. 229
§ 9.4 EXAMPLE: COMBINED MOTION, NOTICE, & BRIEF ................... 230
§ 9.5 EXAMPLE OF SEPARATE MOTION .......................................... 231
§ 9.6 EXAMPLE OF SEPARATE NOTICE ........................................... 232
§ 9.7 EXAMPLE OF SEPARATE TRIAL BRIEF .................................... 233
§ 9.8 RESEARCH & WRITING ASSIGNMENT .................................... 238
§ 9.9 EXAMPLE OF A TRIAL BRIEF .................................................. 239
§ 9.10 TABLE OF AUTHORITIES ..................................................... 243
PART FOUR: NON-TRADITIONAL RESEARCH & WRITING .................. 245
Chapter 10: Accessing Authority Online .............................................. 247
§ 10.1 ONLINE SITES ................................................................... 247
§ 10.2 QUERY FORMULATION FOR ONLINE RESEARCH ..................... 248
§ 10.3
LexisNexis: SIGNING ON ................................................. 250
§ 10.4
LexisNexis: BEGINNING YOUR SEARCH ............................. 251
§ 10.5
LexisNexis: ENTERING YOUR SEARCH QUERY .................... 252
§ 10.6 LexisNexis: SEARCH RESULTS PAGE .................................. 253
§ 10.7
LexisNexis: QUERY RESULTS PAGE VALIDATION ................ 254
§ 10.8
LexisNexis: OPENING A CASE IN RESULTS PAGE ................ 255
§ 10.9 LexisNexis: SHEPARDIZING A CASE .................................. 256
§ 10.10 LexisNexis: TABS- RESEARCH TASKS ................................. 257
§ 10.11 LexisNexis: TABS- SEARCH ADVISOR................................. 258
§ 10.12 LexisNexis: TABS- GET A DOCUMENT ................................ 259
§ 10.13 LexisNexis: TABS- SHEPARD’S .......................................... 260
§ 10.14 LexisNexis: SECONDARY SOURCES ................................... 261
§ 10.15 WESTLAW: SIGNING ON .................................................. 262
§ 10.16 WESTLAW: SEARCHING .................................................. 263
§ 10.17 WESTLAW: ENTERING YOUR QUERY ................................ 264
§ 10.18 WESTLAW: SEARCH RESULTS .......................................... 265
§ 10.19 WESTLAW: VALIDATION RESEARCH .................................. 266
§ 10.20 WESTLAW: VALIDATION RESULTS ..................................... 267
§ 10.21 ELECTRONIC V. LAW LIBRARY RESEARCH .......................... 268
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Essential Skills for Paralegals: Volume II
Chapter 11: The Desperate Researcher ............................................ 269
§ 11.1 “I CAN’T FIND ANYTHING!” ................................................ 269
§ 11.2 COMMON RESEARCH ROADBLOCKS ..................................... 270
§ 11.3 ADVANCED TECHNIQUES IN TRADITIONAL SOURCES ............ 273
§ 11.4 REVIEW: AMERICAN JURISPRUDENCE ................................. 273
§ 11.5 REVIEW: CORPUS JURIS SECUNDUM ................................... 274
§ 11.6 REVIEW: WEST DIGESTS ................................................... 274
§ 11.7 REVIEW: AMERICAN LAW REPORTS .................................... 275
§ 11.8 THE GENERAL DIGEST ....................................................... 278
§ 11.9 RESTATEMENTS OF THE LAW .............................................. 280
§ 11.10 EXAMPLE OF RESTATEMENTS OF LAW ................................ 283
§ 11.11 RESTATEMENTS EXERCISE ................................................ 284
§ 11.12 LEGAL PERIODICALS ....................................................... 285
Chapter 12: Non-traditional Writing Techniques ................................. 287
§ 12.1 SYNTHESIZING AUTHORITY ................................................ 287
§ 12.2 SYNTHESIZING PRIMARY AND SECONDARY ......................... 287
§ 12.3 EXAMPLE USING PRIMARY AND SECONDARY ......................... 289
§ 12.4 SYNTHESIZING STATUTES AND CASES................................. 290
§ 12.5 EXAMPLE USING A STATUTE AND A CASE............................. 290
§ 12.6 CITING DISSENTING AUTHORITY ....................................... 291
§ 12.7 EXAMPLE OF CITING A DISSENT ......................................... 292
Appendix A: The Client ...................................................................... 293
Appendix B: Interoffice Memorandum Authorities .............................. 301
Appendix C: Legal Analysis Exercise Case Example ............................. 331
Essential Skills for Paralegals: Volume II
viiC
Acknowledgments
This book would not have been possible without the
hard work of Alyssa Navallo. Her tireless efforts have
made this manual more functional. Her insight has
lifted the learning experience provided within these
pages to a very high level. Her partnership has made
the process of designing educational opportunities
even more rewarding. She is, quite simply, amazing.
Dedication
This manual is lovingly dedicated to my Mother, who
valued and appreciated education as much as anyone
I have known. Born in 1923, she finished high school
but was unable to attend college. She supported my
Father as he attended seminary, and with him raised
five children. Without complaint, she went back to
work at a time most were thinking of retirement to
help support all her children as they attended
universities, and saw four of them graduate.
During holiday gatherings, our family would play
games that required a knowledge of history, science,
current events, and other intellectual prowess. And
yet this woman who never attended a day of college
never lost a game to her “educated” children, or anyone
else, until late in her life. (Her lawyer son finally
beat her in her early seventies, and I am convinced
he counts this as a higher achievement than passing
the bar.) She taught me that education is more than
letters on the pages of books. Education is that which
is remembered after what was once studied has been
forgotten. She was the most educated person I have
ever known.
I hope she knew what an inspiration she was, and
still is, to her children.
D.R.B.
viii
Essential Skills for Paralegals: Volume II
P.R.C.P.
THE PARALEGAL RULES OF CLASSROOM PROCEDURE
(a)
(b)
(a)
(b)
Rule 1.
Scope of Rules
These rules exist for the purpose of establishing appropriate
paralegal skills and instilling proper professional behavior in
students entering the paralegal profession. When filing documents
in court, attending a court hearing or working for an employer,
certain standards will be expected of the paralegal, including
timeliness and quality work product. To that end, students will
be expected to meet similar standards and expectations during
their educational experience. In addition, these rules are
established to make clear the requirements that must be achieved
in order for a student to obtain his or her paralegal certificate.
These rules may be superceded, added to, or modified by the
school or instructor offering or teaching your paralegal program.
Rule 2.
Attendance
Students are required to attend each class in it’s entirety.
Unexcused absences may not exceed a maximum set by the school
offering this program.
Just as a judge will not tolerate an attorney being late to court,
tardiness in this class will be discouraged. Any student not counted
present at the beginning of class will be considered absent for the
entire class, unless:
(1) the student provides written excuse from
a licensed physician, or
(2) the student provides written excuse from
her or his employer, or
(3) arrangements have been made with the
school or instructor to accommodate such
considerations as work schedules, or
(4) the instructor in his discretion approves
the absence or tardiness, in the interest of
justice.
Essential Skills for Paralegals: Volume II
ixC
(c)
Instructors may or may not be present during assigned
law library research sessions. Students should not rely
on instructors or library staff during such sessions.
Rule 3
Written Assignments
(a) All assignments are to be turned in on their due date.
Each class day an assignment is late will cost the student the
equivalent of one full letter grade unless:
(1) a Motion for Enlargement of Time has been turned
in and granted
(2) the instructor has approved the delay
(b)
Each assignment must receive a passing grade for the
student to receive his or her certificate.
(c)
Each assignment shall be prepared in the following
manner:
(1) Assignments shall be typed or printed. No
handwritten assignments shall be accepted
(2) All assignments shall be prepared on 8 ½
by 11 inch white bond paper
(3) All assignments shall be double spaced
unless otherwise instructed
(4) Assignments shall be typed on only one side
of each sheet of paper
(5) Each written assignment shall be stapled
on top left hand corner
(6) The student’s name shall be typed or written
on top right hand corner of the front page
(7) No folders, file holders, or plastic bindings
shall be accepted
(d)
Violation of these rules shall result in the loss of up to
one letter grade for each violation, at the instructor’s discretion.
Rule 4.
Examinations
(a)
Unless the school or instructor states otherwise, students
are required to pass each examination.
(b) Make up examinations may be offered, at the discretion
of the instructor, in the interest of justice.
x
Essential Skills for Paralegals: Volume II
V O L U M E II
part 1
Fundamentals of Research & Writing
the keys to the kingdom
Part 1 Chapters:
1. Authority: Fundamentals
2. Research: Fundamentals
3. Writing: Fundamentals
Legal analysis is the application of the law to a given
set of facts. This analysis is most often found in
legal writings, by both the parties and by the court
itself. To find the applicable law to the given set of
facts, we engage in legal research. When researching,
the goal is first and foremost to find all relevant
authority. Authority is anything the court can, or
must, use in reaching its decision. The truly good
researcher is not a crusader for the client in the library,
but instead searches for applicable law to the client’s
Assignments
situation, good or bad.
While an internal, or interoffice, memorandum applies
the law in an objective manner, an external
memorandum or brief applies any authority cited to
the advantage of the client, minimizing the damaging
points of damaging authority, and maximizing the
favorable points of favorable authority. The goal of
this chapter is to introduce the student to the concept
of legal analysis, proper analytical form, and to use
these skills when preparing an interoffice
memorandum. In addition, the student will begin
developing skills related to legal research. These
skills will include: proper utilization of indexes,
research within legal encyclopedias, and how to find
cases and statutes in a law library.
As the student takes these first steps in legal writing
and legal research, it will be helpful to know that
there are some basic concepts and systems that
should be followed, and that, in fact, make your job
easier. First, accept the fact that what you think
doesn’t matter at all! The only thing that matters in
legal writing and legal research is “what the law is.”
In addition, when creating a legal document, don’t
use your own, individual style of writing. You must
use the analytical system that you will be taught. In
fact, it makes writing easier because all you have to
do is follow each step of the system. By following
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
these guidelines, and accept them, the result will be a
document that relies upon authority instead of personal
opinion, and a document that anticipates, or argues,
what the ultimate result of the court will be, based
upon that authority.
Open your mind. When talking about the law, the rules
of writing and research are different.
Legal Junk Food
Q. Doctor, before you
performed the autopsy, did
you check for a pulse?
A. No.
Q. Did you check for blood
pressure?
A. No.
Q. Did you check for
breathing?
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
practising law
somewhere.
2
authority
The court, in making its decision, relies on
cases, statutes, regulations, even articles and
commentary by private individuals. Whatever
it is that the court is relying on, it is called
authority. As we will see, there are different
kinds of authority: primary, secondary, mandatory, persuasive, and non-authority. In this
chapter, we will concentrate on identifying primary, secondary, and non-authority. Understanding these stepping stones of authority will
make the remainder of this Segment more productive. We will discuss more advanced applications of authority, including identifying mandatory and persuasive authority, in a later chapter.
citations
In order to eventually refer to an authority, one
must be able to provide a legal “address.” 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 “Bluebook” form.
analysis
Legal analysis is the application of any form of
law to a specific set of facts. There is a very
quantifiable system of analysis. The beauty of
the system is that, once understood, the job of
the author is actually made easier, and the resulting analysis more powerful and convincing.
The system is referred to as IRAC, and every
lawyer learns it in law school.
Essential Skills for Paralegals: Volume II
These three skills eventually work together: in
any analysis, the paralegal provides citations to
the authority being cited.
PART 1 OBJECTIVES
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
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
using memorandum form, often incorporating
analytical skills.
Index Research
The foundation of all legal research is the ability to
use indexes. From the concept of “cartwheeling”
to the basic “hierarchical structure” of legal indexes,
paralegals need to efficiently utilize these
fundamental research tools.
Breaking Rules Into Elements
Students will be taught how to break a rule of law,
the hearsay rule, into elements in order to properly
apply them to factual situations.
Part One: Fundamentals of Research and Writing
3C
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.
To be a competent researcher, knowing how to find
cases, statutes, and other legal materials is not
enough. The lawyer or paralegal must also anticipate
whether the court will be persuaded by the material.
To determine this, the researcher must initially be
able to identify two things:
Is the authority law or non-law?
(primary or secondary)
If it is law, what weight will it carry?
(mandatory or persuasive)
_______________________________________
Primary/Secondary
Understanding the difference between primary and
secondary authority is fairly simple. 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, constitution,
or any other form of law.
Secondary Authority
Secondary authority is non-law.
Example: A comment from a legal
encyclopedia.
_______________________________________
Mandatory/Persuasive
Determining what weight the authority carries is
equally 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 the researcher has located unless it is
established that the law has been superceded or has
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
been declared unconstitutional. If the material is from
the same level court or lower, that material is persuasive,
and the court can choose whether to follow the authority
or not.
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
While the researcher always looks for mandatory
authority, it is usually persuasive authority that is
found, 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 do so. Although a
court is not required to follow a previous ruling
by the same level court, it will do so unless a
compelling reason has been provided.
_______________________________________
Non-authority
If authority is anything the court can or must use in
reaching it’s decision, then non-authority is anything
the court would never use in reaching its decision,
such as a case that had been overturned.
Example: A case that has been reversed by a
higher court. A statute that has been
superceded. A research book that is used as
an index, or that could never be quoted.
In this chapter we will discuss the identification of primary,
secondary, and non-authority.
6
Essential Skills for Paralegals: Volume II
§
1.2 PRIMARY AUTHORITY
There are many kinds of laws. Each serves its own purpose.
Some can supercede others. Following is an introduction to
the 10 kinds of law in the rough order of supremacy.
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 country. In
addition, states have their own individual constitutions.
Statutes
Laws created by the legislative branch of government.
For instance, the U.S. Congress creates federal statutes
contained in the United States Code (U.S.C.). State
legislatures create statutes for their own states. Statutes
are enacted law.
Opinions
An opinion is a decision of the 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
obtain an abortion. Opinions are common law.
Treaties
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 needed to be confirmed by the U.S. Senate
before it could become law.
Executive Orders
A law created by the highest entity of the executive
branch, such as the President or Governor. An example
of an executive order is a 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
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, and/or the highest court in
the state. For instance, the Federal Rules of
Civil Procedure are the court rules for civil federal
trials.
Charters
The local equivalent of a constitution. The basic
and fundamental law of a local government.
Establishes the structure of the local
government in that jurisdiction.
Which of the following are
primary authority?
_______ a case
Ordinances
_______ a statute
The local equivalent of a statute. Rules that
_______ an ordinance
_______ an index
members of the community are expected to
_______ a dictionary
follow. If a person fails to cut his or her lawn,
_______ the SALT Treaty
he or she is most likely violating an ordinance.
_______ Colo. Rev. Stat. §131.110
_______ an encyclopedia
_______ a Presidential Pardon
The researcher’s first goal is to locate primary
_______ an administrative rule
authority. The researcher may utilize secondary or
_______ a city charter
_______ Roe v. Wade
non-authority to get there, but law is almost always
_______ U.S. Constitution
the focus of research.
_______ Kansas Constitution
_______ a court opinion
_______ an executive order
8
Essential Skills for Paralegals: Volume II
§ 1.3
USING CITATIONS TO
LOCATE AUTHORITY
In order to utilize authority, a researcher or author of a
legal document must be able to locate and refer to
that authority. 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 be taught
the form of a legal memorandum, and will learn the
system of basic legal analysis. Thus, authority, research, and writing are ultimately linked.
authority
Before a researcher steps foot in a law library, he or
she must understand what the books contain, and
what the basic function of those law books are. For
instance, secondary authority (non-law) is used mainly
to locate and explain primary authority (law).
research
Encyclopedias are an excellent example of secondary
authority. The purpose of a legal encyclopedia is to
provide a basic explanation of most areas of the law,
In addition, encyclopedias, as with most forms of
secondary authority, provide citations that lead the
researcher to the actual law (such as cases or statutes). It is the law that is usually quoted or relied
upon in making a legal argument.
writing
Once the researcher has identified various authorities
that are relevant to the legal matter in question, he
or she should refer to those authorities in a legal
writing, such as a brief or motion. As we will see Legal Junk Food
later, briefs are documents that attempt to persuade
the court to rule in favor of one side or the other. The COUNSEL
The respiratory arrest means
court doesn’t care what the attorney or paralegal no breathing, doesn’t it?
thinks. It is obviously more likely to pay attention to WITNESS
a statute, or a court opinion. This is why we want to That’s right.
COUNSEL
rely on primary authority in legal writing.
And in every case where there
is a death, isn’t there no
breathing?
Part One: Fundamentals of Research and Writing
9C
§ 1.4
LOCATING A CASE WITH A CITATION
Case law means court opinions. Court opinions are considered
common law, which means they arise from a factual dispute
the outcome of which has been determined by a judge. But
how does a paralegal locate case law? It depends on the
information the paralegal has when beginning research.
If the paralegal is provided with a citation . . .
A citation is a legal address. Almost any legal writing may be
cited, including, of course, cases. Following is a typical citation:
Canino v. New York News, 475 A.2d 528 (N.J. 1984)
Assignment 1.4 a
Title
Canino v. New York News is the name of the case. The
title is always either italicized or underlined.
Locate the following cases
in the law library. You do not
have to copy the case.
Instead, write down the first
sentence the case after the
caption.
Volume
475 is the volume number.
Martinez v. State, 961 P.2d 752 (Nev.
1998)
Ward v. State, 1 S.W.3d 1 (Ark. 1999)
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.
U.S. v. Barrow, 118 F.3d 482
(6th Cir. 1997)
Court
N.J. stands for the Supreme Court of New Jersey,
the court that authored the opinion.
Arizona v. Roberson,
486 U.S. 675 (1988)
Year
1984 is the year the opinion was decided.
To find the case all one needs is the publication, volume and
page. Find the publication (Atlantic Reporter, 2d series), the
volume (475), then the page (528).
If the paralegal has been provided with 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.
10
Essential Skills for Paralegals: Volume II
§
1.5 HOW TO READ A CASE
Official reports are published by the government (either
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 exact same opinion, word for word. The unofficial
reporters also provide tools to assist the researcher.
Reporters contain the following:
Syllabus
This is a short synopsis of the case. It provides the
researcher with a snapshot of the legal matter in
question and the result of the case being read.
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 number 1.) Thus, if the researcher was
only interested in headnote number 5, she or he
could simply look for a bracketed number [5] within
the opinion. This allows the researcher to quickly
identify the points in an opinion most relevant to
the issue at hand. Please note, however, that before
a researcher relies on any case, the entire opinion
should be read.
Key Numbers
Reporters are generally published by WestGroup (now
owned by Thomson Publishing), and therefore utilize
West’s Key Number System. This is a mechanism for
broadening the scope of research, and will be covered
at a later point 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.
Part One: Fundamentals of Research and Writing
11C
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 the
court. Everything above is provided by the publisher, and
may not be quoted. Everything below is the court opinion,
and may be quoted. (Again 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 realize that the
top of the next column is the beginning of the opinion.)
The Opinion
The opinion is the decision of the court and follows the line
of demarcation. Even though it is not captioned as such,
the opinion that is provided after the line of demarcation is
the majority opinion of the court. If there is a dissenting or
concurring opinion, those will be titled as such and provided
after the majority. It is almost always the majority opinion
that the researcher is interested in, since it has the force of
law.
Almost every opinion has three elements, and it is up to
the researcher to identify those elements as the case is
being read.
1. History
The court will usually begin by providing a quick overview
of how the case got to that point. This is important to
know, but the history is not usually quoted.
2. Reasoning
This is what the researcher is going to quote in a
memorandum or other legal document. It is the logic
the court uses to reach its result. This is what will
convince, or deter, a judge to follow your legal argument.
3. Disposition
The result of the court’s decision. The most common
dispositions are for the court to affirm, reverse, modify,
or remand. Remember, if the disposition of the case
you are reading reverses, it does not mean the case
you are looking at is reversed. It is the earlier, lower
court case that has been reversed by this later opinion.
12
Essential Skills for Paralegals: Volume II
Diagram 1a: Example of a Case
Caption
Headnote
Syllabus
Brief explanation of
the case.
The
result
of
the
opinion
(here,
“Petition denied”)
does not refer to the
validity of this
case. It refers to
the validity of the
case from which the
appeal came.
Headnote
Headnote
Headnote
Line of
Demarcation
Key
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
Headnote
Opinion
Headnote
Part One: Fundamentals of Research and Writing
13C
§ 1.6
FINDING STATUTES WITH A CITATION
A statute is a law created by the legislature. Statutes are not
about specific factual situations, as are cases. Instead, statutes
act as the general rules for society.
There are federal statutes and state statutes. The researcher
may locate statutes in a couple of different ways, depending
on the information provided.
If the paralegal is provided with a citation . . .
A citation is a legal address. As mentioned previously, almost
any legal writing may be cited, and that includes, of course,
statutes. Following is a typical federal statutory citation:
Assignment 1.6 a
Locate the following
statutes in the law library.
You do not have to copy
the statute. Write down
the first sentence of each
statute.
42 U.S.C. §1204
Iowa Code Annotated
§85.27
Nev. Rev. Stat. §37.010
42 U.S.C. §1204 (1984)
Title or Chapter
42 stands for Title 42. In many state statutes, the 42
might stand for Chapter. In either case, this is the
number to which the researcher would be first led.
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.
Year
1984 is the year the statute was enacted. (Not all
jurisdictions require the year in statutory citations.)
To find the statute, all one needs is the publication, title (or
chapter), and section. Find the publication (United States
Code), the title (42), then the section number(1204).
If the paralegal has been provided with 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. But
if the researcher is specifically looking for statutory authority,
start in the index to the statutes being researched.
14
Essential Skills for Paralegals: Volume II
§
1.7 HOW TO READ A STATUTE
Official statutes are published by the government
(either state or federal) and generally include
only the statutes themselves.
Unofficial statutes are published by private
publishers, such as West Publishing. They contain
the exact same statutes, but also contain
additional research tools and resources.
For example, the Interpretive Notes and Decisions
below provide references to cases that have
actually interpreted and applied the statute in
question.
Diagram 1b: Example of a Case
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
that have been
provided to you
to expand your
research.
Part One: Fundamentals of Research and Writing
15C
16
Essential Skills for Paralegals: Volume II
chapter 2
The Fundamentals of Legal Research
§
2.1 THE SYSTEM OF LEGAL RESEARCH
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, sometimes subtly,
different purposes.
•
•
•
•
•
•
•
•
•
Some
Some
Some
Some
Some
Some
Some
Some
Some
comment extensively on areas of law.
try to 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.
All of the above have one thing in common: the system
by which information within them are accessed. For
our purposes, we will call this system the Unified Theory
of Research. The good news is that it is really very
simple. Almost basic. That is the goal of the system.
Because having all the information at your fingertips,
even at the expense of millions of dollars in legal
materials, is pointless if the information is difficult or
impossible to locate. So, what is the system?
Part One: Fundamentals of Research and Writing
17C
Index to Main Volume to Additional Authority
In almost all research materials, the researcher
should begin in the index, which will lead to the
main volumes within that same set of books, which,
in turn, will lead to additional authority, such as a
case or statute.
Your initial reaction may be, “What’s the big deal?”
That’s the point. Don’t fight it. Don’t make research
harder than it has to be.
In fact, there are only two sets of widely used
materials that don’t follow this unified theory. So
the sooner you accept this system, the sooner you
will become an excellent researcher!
§
2.2 INDEX RESEARCH:
THE HIERARCHICAL SYSTEM
The general rule is that, in whichever set of books
the researcher is in, start in the broadest index.
Sometimes it’s called the General Index, sometimes
the Descriptive Word Index. When researching,
always start in the index.
In fact, there are only a couple of books in the entire
library that do not follow the rule to start in the
index. Reports and reporters, as we will see, contain
opinions of the court. Since opinions come out day
by day, year by year, they are chronological. There is
no index. (Although, as we will see, 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 subsubtopic, and so forth. In this system, the subsubtopic relates to the subtopic, which in turn relates
to the topic. For an example, study Exhibit 2a.
18
Essential Skills for Paralegals: Volume II
§
2.3 INDEX SIGNALS
Beginning researchers are often confused by signals. Signals
are actually just research assistants, attempting to guide
the researcher to the appropriate point within the index.
They act just 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, con’t
Habeas Corpus Const L § 327
Wills and Estates Estates § 84
Husband and Wife Witn § 359
Co-conspirators
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 & 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 as well.
Part One: Fundamentals of Research and Writing
19C
§
2.4 USING WORD ASSOCIATION
When conducting legal research, one should generally begin
in the index. Unfortunately, the researcher is at the mercy
of the quality of the index, since some indexes are better
than others. One means of locating possible places in an
index where a topic might be covered is word association,
sometimes called cartwheeling.
When beginning research in Court Rules, first write out (or
concentrate on) the question to be researched. 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?
Our key terms would be:
Summons
Time
Answer
One problem, however, is that the person who created the
index might refer to one of our terms under a different
topic. For instance, while we may call the pleading which
initiates a suit complaint, some states might call it a Motion
for Judgment or Petition. It may be helpful to write down
the alternatives.
Summons
Citation
On-Point
When researching, the
object is to find
relevant material 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 alternate areas under which key terms
might also be dealt with. For instance, while many indexes
would refer to “discovery” under that term, some deal with
it under the broad heading of “pre-trial procedures.” The
researcher would then have to look for “discovery” as a
topic under “pretrial procedures.” Our alternate terms further
alter our list.
Summons
Citation
Return of
Service
Time
Response
Deadline
Answer
Defense
Pleading
Now,
when weVolume
research
Essential Skills for
Paralegals:
II in the index, we have dramatically
increased the chances of finding “on-point” material.
Exercise 2.4(a)
Assume 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
The following are common questions almost always asked
in a beginning legal research course.
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. There are encyclopedias, law reviews,
journals, statutes, regulations, cases, dictionaries, and many
other books that could be helpful. In most cases, there are
five sets of books which constitute the majority of materials
used to begin a legal research project. They are American
Law Reports, American Jurisprudence, 2d, Corpus Juris
Secundum, digests, and state or federal statutes
(depending on whether the issue is a state or federal matter).
There are certainly other books that the researcher may
utilize, but if the skills are developed to research within
these five sets of books, the student will have conquered
the majority of research skills needed in a law library.
When do I stop?
This one is not so simple. However, if the researcher has
thoroughly researched all the materials with which she or
he is familiar, or if the materials begin to lead to the same
cases and statutes, she or he can have some peace of mind
that the 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. Students
are not required to find specific on-point material at this
time. If one of the encyclopedias does not contain relevant
material to the assignment, don’t close the book. The student
should choose another topic, any other topic, that might be
of interest, enabling the student to be led to the main
volumes.
You should be aware that some law libraries only subscribe
to one of the above encyclopedias. Don’t let this worry you.
22
Essential Skills for Paralegals: Volume II
Each encyclopedia is accessed in the same way, so 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.
§
2.6 VISUALIZING THE BOOKS
Here’s a hint. Before leaving the library, sit down, close
your eyes and try to picture a page from Am. Jur. 2d in your
mind. Then try to picture the index for Am. Jur. 2d. Try to
visualize the supplement, etc. Then ask yourself the
following:
Can you visualize these tools in your mind? Are
you able to picture the differences between
them?
For instance, picture a page from C.J.S. as opposed to Words
& Phrases.
C.J.S.
- C.J.S. has commentary on most of the page.
- Within the commentary, there are small raised superior
numbers which 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 bold face.
- Each term is followed by short paragraphs.
- The paragraphs are definitions of the term.
- Each paragraph also includes a citation.
By being able to visualize the form of the books, the function
is more likely understood. If a student can accomplish
this, it means she or he is beginning to understand the
materials.
Part One: Fundamentals of Research and Writing
23C
§
2.7 PUBLISHERS:
A GAME OF MUSICAL CHAIRS
There are only two practical reasons to be able to identify the
publisher of a given set of books. First, if the publisher is the
government, the publication is official, and official cites come
first in any citation. The second reason is to be able to
identify whether the publication is part of a research system.
There are two major research systems. They were created
decades ago by two major publishers:
West Publishing Company
West, the largest publisher of legal materials, is
renowned for it’s Key Number System, a remarkably user
friendly system that allows the researcher to expand
his or her research by cross-referencing multiple digests.
The theory behind West’s research system is to get the
researcher to the law in a very efficient method.
Lawyer’s Cooperative Publishing Company
Lawyer’s Cooperative created the Total Client Service
Library (TCSL) research system with a different theory.
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 will lead the
researcher to additional materials, usually published by
Lawyer’s Cooperative. They include annotations, form
books, treatises, and other practice oriented materials.
The problem is that in the late 1990s, West Publishing
reorganized as WestGroup, which retained West Publishing
as a subsidiary, and purchased Lawyer’s Cooperative Publishing
Company as a separate subsidiary. Then, in the early 2000s,
WestGoup was obtained by Thomson Publishing Company.
However, in order to train the researcher in the two major
legal research systems, this book will refer to the original
publisher of legal materials, even though those original
publishers may now be owned by other corporate entities.
24
Essential Skills for Paralegals: Volume II
§
2.8 LIBRARY SCAVENGER HUNT ASSIGNMENT
Locate the following publications in the law library:
AMERICAN JURISPRUDENCE, 2d
Index
Main Volumes
Supplement
CORPUS JURIS SECUNDUM
Index
Main Volumes
Supplement
REPORTERS (Your Regional Reporter)
Advance Sheet for Reporters
Any case
Headnote in a case
YOUR STATE STATUTES
Index
Main Volumes
Supplement (pocket part)
WORDS & PHRASES
Main Volumes
Supplement (pocket part)
Part One: Fundamentals of Research and Writing
25C
§
2.9 INTERACTIVE STUDY:
WORDS & PHRASES
Words & Phrases is a multi-volume legal dictionary by
West Publishing Company. It is different from other legal
dictionaries in that instead of simply providing a definition
for a term, Words & Phrases actually provides a quotation
from a court opinion that defines the term. If the researcher
finds relevant material, the quote that would be used
would be from the opinion, which is primary, instead of a
typical dictionary definition, which would be secondary.
The Volumes
Begin your Words & Phrases research in the main volume
containing the desired term.
Once the term you are researching has been located, it
will be provided in bold face type. Below the term the
researcher will find paragraphs which are actual quotes
from court opinions. There may be one , a few, or several
quotes provided. At the end of each quote is a citation to
the opinion being referred to. Once a desired quote has
been found, the researcher should locate the actual case
to cite it.
The Supplement
Check the corresponding term in the pocket part (also
called supplement) which is found in the back of each
volume.
As more recent definitions are created by courts, they will
be provided for 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?
26
Essential Skills for Paralegals: Volume II
Diagram 2(a): Screen Shot of Words & Phrases
Part One: Fundamentals of Research and Writing
27C
Diagram 2(b): Screen Shot of Encyclopedia & Index
28
Essential Skills for Paralegals: Volume II
§
2.10 INTERACTIVE STUDY:
AMERICAN JURISPRUDENCE, 2d
Am. Jur. 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 educates the researcher by commenting upon
an area of law. Within the commentary are footnote
reference numbers. (For instance: 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 is an excellent index.
The General Index can usually be found at the end of the
main volumes. 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 to turn within that topic to section 273.) If the
researcher doesn’t understand what a specific abbreviation
stands for, she or he should look at the beginning of a
main volume of Am. Jur. 2d. Many law books, including
Am. Jur. 2d, have abbreviation tables.
Part One: Fundamentals of Research and Writing
29C
After looking up his or her topic in the General Index,
the researcher should 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 2.9 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 located?
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.
30
Essential Skills for Paralegals: Volume II
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 boldfaced, short
statement of the subject matter for that section
number, followed by the discussion of the subject
matter. When reading the discussion, if any passage
is relevant, the researcher should refer to the
footnote which corresponds with the raised number
(footnote reference) in the discussion.
ASSIGNMENT 2.9 B
Locate the volume and section number which
the index provided, and answer these
questions.
1. What is the subject matter under your
topic and section number? There should be
a short, boldfaced 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
31C
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. This makes it tempting for
the researcher to begin his or her research in the
Volume Index. The danger is that this index only covers
the specific area and volume being researched and
will (generally) only lead the researcher to material
within that specific volume. (Note that this index
only provides section numbers, not topics, since this
index is only for this 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. It is a very effective
research tool.
ASSIGNMENT 2.9 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 & section numbers
only topics
only section numbers
4. Where does this index lead?
generally to a point within that
specific volume
generally to another topic or
volume
generally to other research sources
32
Essential Skills for Paralegals: Volume II
The Supplements
Supplements update the material within the
hardbound volume.
Remember, the purpose of Am. Jur. 2d is to lead the
researcher to primary authority, such as a case or
statute. However, before locating the primary authority
Am. Jur. 2d has cited, we must make sure that the
material researched 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
that had been researched in the main volume.
Therefore, 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 2.9 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?
Part One: Fundamentals of Research and Writing
33C
New Topic Service
Am. Jur. 2d’s New Topic Service provides
information on the most recent areas of law.
What happens if, after publishing, printing, and sending out
a new set of encyclopedias, Am. Jur. 2d decides a new area
of law deserves its own topic? For instance, when the AIDS
virus first became a matter of legal concern, cases and
discussions regarding AIDS were placed into various topics,
such as Physician & Surgeon, Diseases, etc. At some point,
the legal ramifications (of the AIDS health crisis) might be
broad enough to deserve their own 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 3-ring binder
a hard bound supplement
Whichever form it is found in, the New Topic Service is usually
kept at the end of the main volumes near the index.
ASSIGNMENT 2.9 E
Using the topic you have been researching, answer the
following questions.
1. Does your library contain the New Topic Service?
2. Is the New Topic Service in your library a hard
bound supplement or 3-ring binder?
3. Is there any new topic relevant to your research
assignment?
34
Essential Skills for Paralegals: Volume II
§
2.10a AM. JUR. 2D EXERCISE
1.
The Am. Jur. 2d Index leads to which of the
following?
a)
b)
c)
2.
3.
volume number, series, page number
a topic and section number
a topic and key number
Does the index have a supplement?
yes
no
How 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.
What research system is C.J.S. a part of?
Part One: Fundamentals of Research and Writing
35C
Diagram 2(c): Screen Shot of Am.Jur.2d
36
Essential Skills for Paralegals: Volume II
Diagram 2(d): Screen Shot of C.J.S.
Part One: Fundamentals of Research and Writing
37C
The Constitution was not made to fit us like a strait jacket. In its elasticity lies
its chief greatness.
Woodrow Wilson
§
2.11 INTERACTIVE STUDY:
CORPUS JURIS SECUNDUM
C.J.S. is published by West Publishing
Company, and is part of its Key Number System.
Corpus Juris Secundum 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
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. (For instance: 24 ) 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.
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
Begin your C.J.S. research in the General Index.
The C.J.S. General Index is an excellent index. The General
Index can usually be found at the end of the main volumes.
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, 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 within that
topic to section 442.) If the researcher doesn’t understand
what a specific abbreviation stands for, she or he should
look at the beginning of a main volume of C.J.S. Many law
books, including C.J.S., have abbreviation tables.
38
Essential Skills for Paralegals: Volume II
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 located?
6. Is your topic covered in the supplement?
yes
no
7. Provide a cite to the C.J.S. main volumes the
index may have provided.
Part One: Fundamentals of Research and Writing
39C
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 boldfaced, short statement of the subject
matter for that section number, followed by the
discussion of the subject matter. When reading the
discussion, if any passage is relevant, the researcher
should refer to the footnote which corresponds with
the raised number (footnote reference) in the
discussion.
ASSIGNMENT 2.11 B
Locate the volume and section number which
the index provided, and answer these questions.
1. What is the subject matter under your topic
and section number? There should be a short,
boldfaced 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:
40
Essential Skills for Paralegals: Volume II
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.
Remember, the purpose of C.J.S. is to lead the
researcher to primary authority, such as a case or
statute. However, before locating the primary authority
C.J.S. has cited, we must make sure that the material
researched is up to date. C.J.S. 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 that had been
researched in the main volume. Therefore, 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 2.11 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 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?
4. If yes, what kind of material?
Part One: Fundamentals of Research and Writing
41C
§
1.
2.12 C.J.S. EXERCISE
The C.J.S. Index leads to which of the following?
a)
b)
c)
2.
3.
volume number, series, page number
a topic and section number
a topic and key number
Does the index have a supplement?
yes
no
How does the commentary refer to the
footnotes?
yes
no
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. What research system is C.J.S. a part of?
42
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 thinks, or
what the paralegal thinks, is irrelevant. All that matters
is the law.
Within 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.
•
Secondary authority, such as legal
treatises, may be cited, but law
always supercedes non-law.
•
Write in a concise fashion, but
thoroughly apply the authority to your
client’s facts.
•
Reread and check your writing for
grammatical errors.
As you begin to learn the process of legal writing,
and the process of analysis, remember this. You
don’t create the law. You find and apply the law.
Even when creating such mundane documents as a
client retainer agreement letter, or a letter to a
hospital requesting records, the above theory
applies. 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
43C
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
There are, of course, many types of legal writing. These
examples of legal writing differ in their specific functions.
While this chapter will concentrate on the preparation of a
legal memorandum, it is helpful to distinguish different
functions of legal documents.
Correspondence
Letters and email between attorneys or paralegals and
clients comprise 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.
(In order to succeed, the law must eventually be proven
to apply to the client’s situation.) The writer prepares
documents that lay out specific facts which support his
or her position in litigation or criminal proceedings. It is
in motions and at trial that the law is applied to the
facts set forth 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 the
opposing party intends to argue at trial.
Motions
Motions are procedural in nature. They seek to have the
court address a procedural issue in the matter before
the court, such as a request to grant summary judgment.
Briefs and Memoranda
These documents argue legal issues and are, therefore,
law based documents. Internal memoranda (such as
interoffice memos) are objective, looking at both sides
of the legal question with an open mind. External
memoranda (such as trial briefs) attempt to persuade
the reader and, therefore, only argue law that is favorable
to the client.
44
Essential Skills for Paralegals: Volume II
§
3.3
CORRESPONDENCE: DEMAND LETTER
There is no single and correct form for a demand letter.
There are no statutory requirements to follow. (Some
states do have specific rules in collection cases.) But a
good demand letter can fulfill an obligation that, in some
jurisdictions, may apply.
There is a concept called “exhaustion of remedies.” This
means that at all steps of a given dispute, every possible
solution, or remedy, has been tried. In other words, the
person that eventually files suit with the court wants to be
able to say, “Look, 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, this can go a long way to
establishing an argument for attorney fees to be awarded.
If the amount of money won at trial exceeds the amount
requested in the demand letter, the argument for attorney
fees is much more likely to be successful.
The elements to a successful demand letter are:
1.
2.
3.
4.
Be clear and straight forward
Don’t argue in the letter
Provide documentation to establish the claim
Provide documentation to establish the damages
1. Be clear and straight forward.
Sometimes, less is more. Don’t get bogged down in
details. You don’t have to provide exact details and
facts, but 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, the names of
witnesses who viewed the event. This may be appropriate later at trial, but in the demand letter,
simply set forth the claim: On June 5, 2002, Mr.
Hayes ran a red light at the intersection of Main
Street and Second Street, causing a collision with
Part One: Fundamentals of Research and Writing
45C
I do not suppose that civilization will come to an end whichever way this case is
decided.
Oliver Wendell Holmes, Jr
Mr. Jones.
When requesting damages, don’t explain why a specific request is being made. Just itemize the amounts,
and add up the total. If there is a dispute about a
specific damage, that dispute belongs in the courtroom, not the demand letter.
In a demand letter, upon the reading of the document, the reader 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
document is not a good demand letter.
2. Don’t argue in the letter.
Don’t argue. In other words, don’t feel like you have
to prove your case in the demand letter, because you
don’t. Argument involves explanation, reasoning,
and conclusion. Not only is it not required in a demand letter, to do so can give away strategies that
may be used at trial.
You, or your attorney, should refrain from arguing
to the other party in the demand letter. Argument
should be addressed to the court, not the other
party.
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 his
head, and a subdural
hematoma 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?
46
3. Provide documentation to establish the claim.
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 not only serious, but
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 be a
witness statement.
Essential Skills for Paralegals: Volume II
• If a roller skate is left on a sidewalk in front
of a house causing a passerby to be injured,
the claim is the negligence of the house
owner. Documentation might be a picture
of the scene, including the roller skate.
•
If a store sells a defective product and
refuses to provide a refund or replacement,
the claim is defective merchandise. An
example of possible documentation might
include the sales receipt.
Remember, any documentation should be only related to establishing that the event occurred. Don’t
fall into the trap of trying to prove your case here.
You may have other documentation. Do not provide it with the demand letter. Remember, sometimes less is more!
4. Provide documentation to establish damages.
Providing documents establishing damages within
a demand letter is more important than those documents establishing the claim. Even if a claim is
established, no money will be granted at a trial
without an establishment of damages. If the documentation provided in the demand letter is clear
and reasonable under the circumstances, the other
party may choose to avoid a suit and pay the damages. Receipts, invoices, bills, accounting statements, and hospital records are excellent examples
of documentation.
ASSIGNMENT 3.3a
Review the following Example of a Demand Letter. If this
assignment is relevant to your client’s legal matter, ,
prepare a demand letter on behalf of your client, giving
the defendant an opportunity to remedy the matter without
going to trial. You may assume the attorney has provided
the amounts, or ask your instructor to set damages for
you.
Part One: Fundamentals of Research and Writing
47C
Diagram 3(a): Demand Letter
Dear Mr. Smith:
This is a demand for payment for injuries
suffered by John Doe. Enclosed are the following:
1.
Mercy Ambulance
4/24/03
Billing, transport report
2.
University Medical Center 4/29/03
Admit/discharge summary
3.
Dr. Henry Morpheus
Billing, office notes
4.
Emerg. Med Billing
5.
ABC Radiologists Billing $1348.00
6/15/03
$2485.00
You will recall that John Doe was the driver
in a vehicle going west on Main Street when Mr.
Smith failed to yield at a stop sign, and struck
the vehicle driven by Mr. Doe, causing the injury
and damages complained of.
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. E n c l o s e d
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. The documented care, having plateaued
as indicated, and there being no other contributory
cause, demand for resolution of this claim is
made in the sum of $3833.00. 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
48
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 Russel Lowell
§
3.4 CORRESPONDENCE: CLIENT LETTER
One of the most often criticized aspects of legal
representation is the lack of communication from the
attorney to the client. A paralegal can greatly assist
her or his attorney in this regard. When a paralegal
communicates with someone relevant to the case,
the client should be notified, preferably in writing. A
copy of the correspondence should be included.
This will avoid misunderstanding, will help the client
more thoroughly understand the representative
process, and will make the client feel more involved.
The letter should not be long. It does not have to
explain every action taken by the law firm. If a client
is kept up to date on her case by the attorney or
paralegal, it may save the attorney the embarrassment.
On the following page is an example of a simple
correspondence letter between a paralegal and a client.
ASSIGNMENT 3.4a
Prepare a letter to be sent to your client that informs
him or her that the previous demand letter has been
sent to the Defendant.
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 that
one of them was wearing and the
identity number on the fender of
their squad car. The two officersStephen Webster, 33, and Tyrone
Pickens, 32, had actually
committed the crime in full
uniform, while on duty.
Part One: Fundamentals of Research and Writing
49C
Good men must not obey the laws too well.
Ralph Waldo Emerson
Diagram 3(b): Client Letter
John Doe
382 Simmons Lane
Memphis, TN 39273
February 12, 2003
Dear Mr. Doe,
Attached please find a copy of the Demand
Letter sent to Mr. Smith. If we have not
received payment within 20 days, the attorney
will contact you to discuss your options.
Please feel free to contact me if you have
any questions regarding these matters.
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 then
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
heck,” and he ordered her
to write out a check for $30.
Then he changed his mine I
and upped it to $50. “Who
shall make it out to?” asked
the woman, a 34 year-old
government employee.
“Charles A. Meriweather,”
said
Charles
A.
Meriweather, adding, “It
better not bounce or I’ll be
back.” Meriweather was arrested several hours later.
50
Respectfully,
Zee Hathaway
Paralegal
Essential Skills for Paralegals: Volume II
§
3.5 10 COMMANDMENTS OF WRITING
When preparing documents that interpret or relate legal
authority, such as a legal memorandum or trial brief, the
following points should always be adhered to:
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.
Write in 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
try to use a legal term just to sound
“legalistic” and use it incorrectly, you
will look foolish.
8.
When quoting authority, quote the
authority exactly word for word, unless
you tell the reader you have altered
the cite.
9.
If you emphasize a quote by bold,
italics, or underlining, tell the reader.
Place (emphasis added) at end of the
quote.
10. Reread, checking for 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
51C
§
3.6 INTRODUCTION TO ANALYSIS
A legal memorandum, or brief, is a method 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. Legal analysis
is the application of law to fact. There is a specific
structure to legal analysis. This structure is often
referred to as the IRAC method. The method
presented here is a modification of the IRAC method.
Issue Introduction
Rule
Application
Conclusion
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?
JUROR
I’m not pregnant.
52
Every analysis is based upon an issue. An issue is a
question that the court must answer. The issue should
usually be provided by the attorney. A single issue
may analyze one authority, or multiple authorities.
If multiple authorities are analyzed within an issue,
the writer should utilize the steps of the IRAC method
for each individual authority cited. You must analyze
applies each law on its own merit, not collectively.
Therefore, when applying authority, you do not need
to tie every case and statute relied upon together.
Analyze each authority individually.
§
3.7 COMPARING CASES
Let’s assume you’re working on a case involving assault
with a deadly weapon, and that your client is charged
with hitting a man with a baseball bat. If, in your
research, you find a case in the law library where a
man attacks his brother-in-law with a walking cane,
you may want to compare those facts with your client’s
facts since they are so similar. The case would be
relevant to your client since a walking cane and a
baseball bat might be viewed as comparable.
However, comparing a case where the deadly weapon
was a shotgun (instead of some sort of stick) would
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
not be nearly as relevant. It would also be irrelevant
to bring up the fact that in the walking cane case,
the Defendant was also charged with theft. Only
discuss the relevant facts. Of course, after discussing
the similarities and differences, you must discuss
how the court held and, therefore, how it might
influence the court in your client’s case.
Its tempting to start the analysis by citing the case
being relied upon. But it’s important to remember
that the court’s ultimate decision should be the focus
of the analysis. Therefore, a good rule of thumb is
not to start a paragraph with “In Smith v. Jones, the
court held....” Instead, follow these steps:
The Instant Case
The term “instant case” is
very common in legal
writing. It means your
client’s case, as opposed to
a case you have just
quoted. Your client’s case
may also be referred to as
“the case at bar,” or “the
matter before the court.”
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 relied
upon. Note that 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 form of legal logic of the
court, often called the court’s reasoning.
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.
If the writer disciplines him or herself to utilizing
each of these steps for each authority being analyzed,
not only is the process made easier, the final product
is stronger. The result is also a product an attorney
will recognize and respect.
Part One: Fundamentals of Research and Writing
53C
ISSUE
Can a baseball bat be considered a deadly weapon?
1. ISSUE INTRODUCTION
2. RULE
(Rule Facts)
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. Ct. App. 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:
(Rule Quotation)
3. APPLICATION
4. CONCLUSION
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.
If you leave something out
at the end, inform the reader
using an ellipsis and a period:
...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.
§
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. Let’s assume a case is found in which a man was
found 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:
The court ruled in favor of
the plaintiff . . . .
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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 can not.
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.
§
1. ISSUE INTRODUCTION
2. RULE
(Rule Facts)
(Rule Quotation)
3. APPLICATION
4. CONCLUSION
Quotations
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:
When quoting authority
of 50 words or more,
single space, indent on
both sides, and separate
without
quotation
marks. When quoting
less than 50 words, use
quotation marks within
the paragraph.
Is the doctor liable for the negligent acts of the nurse?
Part One: Fundamentals of Research and Writing
55C
§
3.10 ANALYZING STATUTES AND RULES
Legal Analysis is the application of law to fact. As discussed
earlier, when analyzing cases, the facts of each case are
compared, followed by the application of the law (case) to the
client’s facts. But what happens when researching a statute or
rule, where there are no facts to compare? The key is to
break the rule or statute into elements, then you must apply
each element individually 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 I 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.
COUNSEL
What was supposed to have
happened?
POLICE OFFICER
If it was cocaine, it would
have immediately have
dissolved.
COUNSEL
What would have happened
if that was soap?
POLICE OFFICER
It would have dissolved.
56
Facts
Bob is married to Keri. While in an elevator, Bob told Keri that
he had “two joints” in his pocket and asked if she wanted to
smoke one. Unfortunately for Bob, a plain clothes police officer
was also in the elevator and overheard the conversation. He
arrested Bob for possession of a controlled substance, and
now the D.A. wants Keri to testify. Does Keri have to testify?
Breaking Rules into Elements
There are a few skills that, even though not particularly difficult
to acquire, are critical to being an excellent paralegal. For that
matter, this skill is one of the most important techniques that
attorneys utilize, developed during three years of law school.
Notice an attorney when she or he is reading a case or statute.
The attorney is not “speed reading.” She or he is most likely
reading very slowly. In fact, the attorney is mentally breaking
the law being read into elements. The key to this skill, however,
is actually using it. 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 a new element.
When the word “or” appears, keep those sections
together since the element will apply if either part applies.
Essential Skills for Paralegals: Volume II
Law is whatever is boldly asserted and plausibly maintained.
Aaron Burr
We must now break the rule into elements.
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.
Notice the first four elements. Each one of these 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
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 element 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 element applies as a passive element
Application
Remember that if any element fails to apply, the entire
statute does not apply. Therefore, since the first element
above does not apply, the statute does not apply, and the
wife will have to 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.
COURT
Can’t they do without you
at work?
JUROR
Yes, but I don’t want them
to know!
Part One: Fundamentals of Research and Writing
57C
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. But how
do we analyze the statute within a memorandum or brief?
The answer is that the author should utilize the same
analytical system as with case law, but understand that
there are no “facts” of the statute to present. When the
statute is applied, any element that does not apply should
be the focus of the writing. If all elements apply, discuss in
detail how they apply. Following is an example of statutory
analysis.
Issue
1.
Can a wife be forced to testify against her husband?
Analysis
Statutory authority addresses the issue of spousal
communications. H.R.S. § 645.120 states:
Legal Junk Food
JUROR
Your Honor, is it proper to ask
the interpreter a question? I’m
uncertain about the word la
vado. 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 the-
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 above authority does not apply to our client’s situation.
Even though 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 any
communication taking place in such a confined place as
being “private.” There can be little expectation of privacy
under such conditions. Therefore, the wife in the above
matter will most likely have to testify regarding the
conversation.
JUROR
I understand the word la vadoI thought it meant restroom.
She translates it as bar.
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 and 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 is in litigation, and wants to have a birth
certificate admitted into evidence. He was born in Iran.
The original was destroyed by a flood.
Exercise B
O.C.R. § 331.93
If parties to a litigation 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.
Your client is from Oregon, and got into a car accident
in Portland with a man from New Mexico who was on
vacation. The Plaintiff is suing for $75,000, and has
moved to have the matter heard in federal court. Will
his motion be approved?
Legal Junk Food
Exercise C
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.
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, in a moment of
anger, 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
verdict form where the
“foreperson” should sign the
verdict.
When the verdict was
delivered later to the
courtroom deputy, four
persons had signed their
names on the form.
The judge now uses the oldfashioned word “foreman.”
Part One: Fundamentals of Research and Writing
59C
§ 3.12
HELPFUL HINTS IN LEGAL WRITING
Following are helpful hints to get you started in each stage of the analytical
process, using a modifies 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 will all include the following in one form or another
1.
2.
3.
4.
5.
6.
7.
Caption
Assignment
Facts
Issues
Analysis
Conclusion
Recommendation
Following is a simplified example of a legal
memorandum.
MEMORANDUM
TO:
Supervising Attorney
FROM:
Lucy LegalEagle, Paralegal
DATE:
01/25/04
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, 2001.
After exactly one year of dating each other, 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 October
2003.
Part One: Fundamentals of Research and Writing
61C
Six months later, Sam won the state lottery. With his financial
concerns alleviated, Sam could clearly see that he did not want
to marry Paula and soon thereafter 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 have generally held that sexual intercourse between an
1. ISSUE INTRODUCTION
engaged couple does not bar suit on grounds of breach of
promise. In Fleetwood v. Bamett, 11 Colo.App. 77, 52 P. 293
2. RULE
(1898), the Defendant asked the Plaintiff to marry him and the
Facts of the authority
Plaintiff 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, in the 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
Quote the authority
promise. (Emphasis added)
This case applies because in both cases sexual intercourse
following promise of marriage is the primary issue. The
3. APPLY THE LAW TO
THE CLIENT’S FACTS
apparent differences between Fleetwood and the instant case
are that Fleetwood occurred in 1898 when 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,
Note:
This is the most important
part of the analysis. A one
or two sentence application
of the law is most likely insufficient!
while the date would certainly encourage research for more
recent 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 post-
4. CONCLUDE
engagement sexual activity with the Plaintiff as a defense.
Part One: Fundamentals of Research and Writing
63C
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.
4. CONCLUSION
Rev. Stat. § 19-22-302.
CONCLUSION
Conclusion
Summarize the facts in
one or two sentences,
restate the law in one
or two sentences, then
conlcude 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.
Bamett 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 only applies 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. However,
even though our client was not in direct violation of
Recommendation
Suggest next steps, or
future actions.
Note:
Be careful not to analyze
within the Conclusion or
Recommendation!
the statute cited, it is doubtful that our client would
succeed in a jury 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
65C
§
3.14 EFFICIENCY IN WRITING
It is an undeniable point that much of the confusion with
the legal process by the general public can be explained
by the confusing manner in which lawyers communicate
with themselves, the court, and the public. Often referred
to as “legalese,” this inefficient means of writing is often
used by attorneys, and even paralegals.
There are technical legal terms that must be understood
by the paralegal and will become part of the paralegal’s
vocabulary, and lawyers, legislatures, and courts have
attempted to write more in “plain English.” But legalese
is still prevalent, and is sometimes a means of attempting
to demonstrate superiority, or simply derives from the
bad habit of a verbose writing style. One who resorts to
unnecessary legal jargon to make a point is either insecure
or doesn’t really get the point himself.
When writing, write in plain English. Don’t try to sound
like a lawyer. Write clearly and efficiently.
Exercise 3.14(a)
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 extra or 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, prepare an interoffice
memorandum analyzing the issues listed below. Please
note that if you were actually researching these issues
for yourself, you would want to rely heavily on authority
from your state. However, since the purpose of 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” in the
Manual. Do not feel as though you need to create the
“perfect memo” the first time. This is a progressive
educational experience, and this is your first real step
in legal writing. In addition to the cases provided, you
may utilize a legal dictionary.
Your attorney hired you as her first paralegal three
months ago. She is concerned, however, about what
tasks and duties she can or can’t have you perform. In
fact, you have already engaged in a couple of tasks
that she now is concerned may have been inappropriate.
When the client you are representing first came to the
firm’s attention, she asked that you handle the interview.
She told you that she would be glad to represent the
client, and to convey that message after hearing all the
facts. She also gave you specific fees that would be
charged, including the paralegal’s and attorney’s hourly
rates. This information was passed on the client by
you at that initial meeting. Your attorney is now
concerned this may have been inappropriate, and wants
you to review some authorities to make a determination.
The other issue the attorney wants answered does not
have to do with any act in which you have yet engaged.
She 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. This is something she has always planned
on using you for, 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
67C
In law, it is good policy never to plead what you need not, lest you oblige
yourself to prove what you can not.
Abraham Lincoln
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?
The client in this case is the one you chose or were assigned
earlier. You may expand on the facts pursuant to your
client’s case. Provide a few details as to your client’s matter
in the facts of the memorandum.
Using the authorities provided below, analyze the above
issues.
AUTHORITIES (Found in the Appendix)
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.
Cannon of Professional Ethics
§
3.16 EXAMPLE OF AN INTEROFFICE MEMORANDUM
MEMORANDUM
TO:
FROM:
DATE:
RE:
Jean Wilkins, Esq.
Joshua Hoskins, 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 provided to determine whether our client
has the right to have his name placed on the birth certificate of his two year-old
daughter, Jenny 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 16
at the time, and Tom was 15. Heather became pregnant by Tom, and on
September 3, 2000, Heather gave birth to a healthy girl. However, Heather and
Tom broke 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 Sayers. 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 fifty dollars per week while he was still in high school for child
support. As of this date, the informal agreement has worked very well.
Part One: Fundamentals of Research and Writing
69C
A man has never yet been hung for breaking the spirit of a law.
Grover Cleveland
Two weeks ago Tom was informed that Heather planned 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 in this matter.
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
Is it possible to have a new birth certificate issued with our client
1.
named as father?
According to both case law and statutory authority, it appears that Tom will be
able to be declared Jenny’s natural father on her birth certificate. C.R.S. 1321-201 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, however, 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 the listing of a convicted murderer as his natural father on the
birth certificate. 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 in that 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 above case and statute
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
71C
We better know there is fire whence we see much smoke rising that (we) could
know it by one or two witnesses swearing to it. The witnesses may commit
perjury, but the smoke 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 based on previous behavior by Karen. James asserted
that Karen allowed 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 certainly advise our client to approach Heather in an amicable atmosphere
and ask if she would be willing to have a new certificate issued.
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Essential Skills for Paralegals: Volume II
V O L U M E II
part 2
USING AUTHORITY
Research & Writing in Litigation
Part 2 Chapters:
A good paralegal must not only be able to locate
authority in a law library, he or she must be able to
utilize that authority by citing it in memoranda and
other forms of legal writing.
In addition, the following chapters will train students
to prepare an instrument (the Summons), two
pleadings (the Complaint and Answer), and discovery
documents (Interrogatories, Request for Admissions,
Request for Production). The skill being taught is
actually not the creation of these documents. Instead,
it is the skill to accept an assignment, and utilize a
form or template to create a new document. This is
a critical skill for a paralegal to possess because it
makes the paralegal more efficient and the time spent
creating the documents more economical for the client.
Finally, the paralegal must utilize all tools available,
including those found in the law library. Form books
are valuable sources of litigation support.
All of these , so valuable in litigation, are transferable
to any area of law. Remember: a skill has no value
unless it is used! Develop your skills by using these
tools! In this part of the manual, we will build upon
the skills developed in previous chapters.
Authority
At this point, students should understand the
definition of authority, and know the differences
between primary, secondary, and non-authority.
In this chapter, students will learn to distinguish
between mandatory and persuasive authority,
and how to identify what type of authority a
specific citation would be. Students will also
learn to cite authority using the actual sources
being quoted.
4. Citing Authority
5. Library Litigation Support
6. Litigation Documents
ASSIGNMENTS
Law Library: Form Books
§ 5.4
Due Date:
/
/
Law Library: Am.Jur.POF
§ 5.6
Due Date:
/
/
The Summons
§ 6.1
Due Date:
/
/
The Complaint
§ 6.2
Due Date:
/
/
Interrogatories
§ 6.12
Due Date:
/
/
Request for Admissions
§ 6.16
Due Date:
/
/
Request for Production
§ 6.20
Due Date:
/
/
Deposition Summary
§ 6.24
Due Date:
/
/
Other Assignment
§ ___.___
Due Date:
/
/
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73C
What is the difference between a taxidermist and a tax collector? The
taxidermist takes only your skin.
Mark Twain
Writing
Students will learn how to create various pleadings
and discovery documents.
Research
Students will learn to use the law library to locate
various forms of litigation assistance.
Students will continue to build upon previously developed
skills. Take the lessons learned from earlier chapters to
make the learning experience more efficient and less
painful!
PART TWO OBJECTIVES:
Legal Research Skills
Students will learn to utilize the law library for
litigation support purposes.
Mandatory and Persuasive Authority
Students will learn to determine the weight a specific
authority will carry with the court.
Real World Citation Form
Students will learn to create citations from the actual
authority being cited.
Pleading and Discovery Preparation
Students will learn to create litigation documents.
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Essential Skills for Paralegals: Volume II
4
chapter 4
Citing Authority
§
4.1 Mandatory and Persuasive Authority
Primary authority is law. Secondary authority is non-law.
Non-authority is anything the court would not use in
reaching its decision. Under what circumstances is a
court required to follow a specific authority? The answer
is that when the authority is mandatory, the lower court
must follow the ruling of the higher court.
4
MANDATORY AUTHORITY is any valid law from a higher
level than the court in which the litigation is taking place.
The court where the matter is being litigated must also
be within the jurisdiction of the authority for it to be
mandatory.
Example of Mandatory Authority
Your attorney is arguing a matter in the Hawaii
Circuit Court (a state trial court), and she has
found a case from the Hawaii Supreme Court. That
case would be primary/mandatory authority, since
the Hawaii Supreme Court is a higher authority
than the Hawaii Circuit Court.
PERSUASIVE AUTHORITY is any valid authority not from
a higher authority. (It is law not within the jurisdiction of
the matter being litigated.)
Example 1 of Persuasive Authority
Your attorney is arguing a matter in the Colorado
Supreme Court. You find a case from the Colorado
Court of Appeals. This case would be primary/
persuasive authority since it is from a lower court
than where the matter is being argued.
Primary Sources
Constitutions
Statutes
Opinions
Treaties
Executive Orders
Administrative Rules
Administrative Decisions
Rules of Court
Charters
Ordinances
Secondary Sources
Am. Jur. 2d
C.J.S.
A.L.R.
Treatises
Legal Periodicals
Legal Dictionaries
Form Books
State Encyclopedias
Restatements of Law
Any other non-law
that is quoted
Non-authority
Digests
Shepard’s
Invalid law
Authority not on-point
Example 2 of Persuasive Authority
Your attorney is arguing a matter in the Utah
District Court (trial court). You find an on-point
case from the California Supreme Court. Even
though the California Supreme Court is “higher”
than the Utah District Court, it would be considered
primary/persuasive since the California Court is
not within the jurisdiction of the Nevada Court.
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75C
Possible Mandatory Courts
It may be helpful to view authority from another angle. Instead of looking at
two possible authorities and their relationship to each other, identify the court
in question, and ask what courts could possibly be considered mandatory.
Remember, only courts higher than the court the matter is in, and
within the appropriate jurisdiction, could be considered mandatory
authority. U.S. Circuit Courts are mandatory on U.S. District Courts
because it is a Federal Court. Remember, the U.S. Circuit Court is
one court that has been broken up into different regions.
Let’s assume the attorney is in the Colorado District Court, a state trial court.
What court opinions could possibly be considered mandatory on that court?
Just ask yourself: what courts are higher with jurisdiction over that court?
The list is very limited:
The Colorado Court of Appeals
The Colorado Supreme Court
The United States Supreme Court
That’s it. Every other court would be persuasive at best. That includes all
other state courts, all other federal courts. If you’re having trouble with
authority, try looking at it from this angle!
Diagram 4(a) Authority Flow Chart
LOCAL
STATE
JJJ
K
State Supreme Court
K
State Court of Appeals
JJJ
K
K
State Trial Court
Local Trial Court
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Essential Skills for Paralegals: Volume II
FEDERAL
U.S. Supreme Court
K
K
U.S. Courts of Appeal
K
K
U.S. District Court
§
4.2 AUTHORITY EXERCISE
What courts could possibly be considered mandatory
on the following?
§
1.
The Virginia Circuit Court (a state trial court)
2.
The U.S. Supreme Court
3.
The New Hampshire Supreme Court
4.
The U.S. 9th Circuit Court of Appeals
5.
The North Carolina Supreme Court
6.
The U.S. District Court, District of Arizona
7.
The California Court of Appeals
8.
The Hawaii Circuit Court (a trial court)
9.
The U.S. 5th Circuit Court of Appeals
10.
A case from the Nevada Reports
11.
A case from the Federal Reporter
12.
A case from the North Carolina Reports
13.
A case from the Nebraska Supreme Court
14.
A case from the Tennessee Court of Appeals
15.
A case from the Federal Supplement
4.3 AUTHORITY DISCUSSION POINTS
1.
Would any relevant, valid case be considered
primary authority?
2.
May secondary authority be relied upon or quoted?
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§
4.4 AUTHORITY EXERCISE
Indicate what kind of authority is presented:
Primary/Mandatory
Primary/Persuasive
Secondary/Persuasive
or
Non-authority
78
1.
You are in the Circuit Court of Virginia, a trial court. A
case you have found is on-point and from the Virginia
Supreme Court.
2.
Your client’s case is being heard by the Supreme Court
of Colorado. The on-point authority you have found is a
case from the Colorado Court of Appeals.
3.
The trial your supervising attorney is involved is in
the Washington Superior Court, a trial court. The case
you have located is from the Supreme Court of Georgia
and is on-point.
4.
You are in the U.S. District Court. An on-point case is
in the Federal Reporter, 2d.
5.
Your client is involved in litigation in the U.S. District
Court. An on-point case from the Supreme Court of Texas
is the authority your attorney is relying on.
6.
You are in the U.S. Circuit Court of Appeals. The case
you are relying on was found in the U.S. Reports and is
on-point.
Essential Skills for Paralegals: Volume II
7.
Your attorney is arguing a case in the Washington
State Appellate Court. You have found an on-point
discussion of the issue in Am. Jur.
8.
Your client has a case in the 3rd Circuit Court of
Appeals. The relevant case you have researched is from
the 9th Circuit Court of Appeals.
9.
Your case is in the U.S. Supreme Court. The on-point
case you are using is a case decided a year earlier by the
U.S. Supreme Court.
10. Your supervising attorney is involved in litigation in
the New Mexico Court of Appeals. You have found a case
decided by the 10th Cir. Court of Appeals that is onpoint.
11. You have a case in the Colorado District Court, a trial
court. You have found an invalid case from the U.S.
Supreme Court that is on-point.
12. You are in the Alabama Appellate Court. The case
you are relying on is from the Supreme Court of New
Mexico. It is on-point.
13. You have a case in the California Supreme Court. You
are relying on an on-point case from the U.S. District
Court, District of Southern California.
14. You are in the Washington Appellate Court. Your onpoint authority is from the U.S. Supreme Court.
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79C
§
4.5 REAL WORLD CITATIONS
Up to this point, you have been taught citation form using
narrative examples. However, in a law office, the paralegal
will almost always be creating a citation from the case itself.
On the following pages, you are provided with the first page
from several cases. You will be required to provide a complete
and appropriate citation using the information provided. Some
hints:
80
1.
Check above the caption for any parallel citations.
2.
If no parallel citation is indicated above the
caption, the researcher would normally
Shepardize the case, but for this exercise,
indicate in parentheses what court
wrote the opinion.
3.
Don’t trust the citation form in the publication.
They probably don’t use Bluebook form.
4.
For the title of the case, use the capitalized
letters of the case, or use the title at the very
top of the page. Only capitalize the first letter of
each word.
Essential Skills for Paralegals: Volume II
Those who cannot remember the past are condemned to repeat it.
George Santayana, 1863-1952
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81C
All the things that I really like to do are either immoral, illegal, or fattening.
Alexander Woollcott
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Essential Skills for Paralegals: Volume II
The acme of judicial distinction means the ability to look a lawyer straight in the
eyes for two hours and not hear a damned word he says.
John Marshall
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83C
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
§
4.6 PINPOINT CITATIONS
Following is a citation to a federal case:
Smith v. Jones, 930 F.2d 308 (8th Cir. 1998)
As you know, this case can be found in volume 930 of the
Federal Reporter, second series. The case begins on page
308. What if the quote the writer is using appears on 315?
After all, it is very rare that the page being quoted is the
very first page of the case.
As a courtesy to the reader, the author of the document
should indicate the page on which the quote is located,
after the first page number. This is referred to as a pinpoint
citation. Example:
Smith v. Jones, 930 F.2d 308, 315 (8th Cir. 1998)
What happens if the citation has a parallel cite? The rule is
that if the author cites one pinpoint, all parallel cites must
have pinpoints as well. For example, a regular citation
from a state case would read:
In re Jones, 98 Nev. 113, 351 P.2d 714 (1979)
An appropriate pinpoint citation would be as follows:
In re Jones, 98 Nev. 113, 115, 351 P.2d 714, 717 (1979)
Another form of pinpoint citation occurs after a quote in a
memorandum or other legal writing. The rule is that an
authority should be fully cited the first time it is mentioned
in a document. If the author wishes to inform the reader
of the exact page the quote came from, he or she may
simply restate the first name of the title, use the supra.
signal, and state where in that case the quote has been
taken. For instance, if the following was a quote from a
case that had been fully cited previously as Smith v. Jones,
584 F.2d 431 (4th Cir. 1989), the pinpoint would look like
this:
...the court cannot provide relief when
the Plaintiff fails to state a claim upon
which relief can be granted.
Smith, supra. at 436
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Essential Skills for Paralegals: Volume II
§
4.7 PINPOINT EXERCISE
Instructions
Case 1
Pinpoint this case to page 441.
Cite these cases using
pinpoint citation form,
assuming the quotation
being cited is from the
page in question.
Case 2
Pinpoint this case to page 67.
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85C
A rule protective of law-abiding citizens is not apt to flourish where its
advocates are usually criminals.
William O. Douglas
§
4.8 STAR PAGINATION
In order to pinpoint parallel cites, the researcher would
normally just look up the quotation in both the official and
unofficial publications to get the accurate page numbers.
What if the researcher is using the unofficial publication,
such as the Pacific Reporter, and does not have access to
the official publication?
Star Pagination is a system by which an unofficial publication
indicates to the researcher what page the researcher would
be in if the official were available. You must be flexible
because the method changes. Sometimes it’s as simple as
a set of stars, such as: *115*. Sometimes it’s a set of
brackets: [115], or [343 U.S. 115]. In any case, these
numbers refer to the point at which that page begins in the
official publication.
Star Pagination is always found in an unofficial publication.
Assume the above is from the Supreme Court Reporter by
West. The page you are on is 248. Above, the 675 indicates
that had you been in the official U.S. Reports instead of the
unofficial Supreme Court Reporter, the page you would be
on would be page 675.
Unofficial Reporter
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Essential Skills for Paralegals: Volume II
Official Reports
§
4.9 AUTHORITY AND CITATIONS
After the paralegal understands authority, she or he will be able
to instantly identify what kind of authority a cited case would
be. For instance, assume your attorney is involved in a case in
the Tennessee Chancery Court (a state trial court). You have
researched the matter, and located three cases. Assuming all
the authorities prove to be relevant, a good researcher should
be able to instantly identify what kind of authority each case
would be, just by looking at the citation!
For instance, what kind of authority would the following citations
be on the Tennessee Chancery Court, a state trial court?
Smith v. Jones, 893 F.2d 493 (9th Cir. 1999)
Primary/persuasive because of the difference
between state and federal jurisdiction.
Keene v. Tyke, 476 S.W.2d 72 (Tenn. 1988)
Primary/Mandatory because the citation is
from a higher authority within the jurisdiction.
Lamping v. Hayes, 287 P.2d 394 (Nev. 1981)
Primary/Persuasive because the case is from
a different jurisdiction.
§
4.10 AUTHORITY AND CITATIONS EXERCISE
What kind of authority would the following citations be on the
North Carolina Court of Appeals (assuming all authorities are
relevant)?
1. Jackson v. Stewart, 138 F.3d 198 (4th Cir. 1998)
2. Gross v. State, 372 N.C. 738, 634 S.E.2d 78 (1989)
3. Britten v. Ventura, 367 F. Supp. 1132 (E.D.N.J. 1977)
4. Navallo v. Squigley, 473 U.S. 267 (1994)
5. Peters v. Wilson, 126 Utah. 548, 384 P.2d 901 (1965)
6. Corey v. Zane, 231 Mich. App. 110, 463 N.W.2d 13 (1981)
Part Two: Litigation Research Support
87C
Legal Junk Food
From an actual U.S. Court of Appeals decision:
The agents involved speak an almost impenetrable
jargon. They do not get into their cars; they enter
official government vehicles. They do not get out of,
or leave their cars; they exit them. They do not go
somewhere; they proceed. They do not go to a
particular place; they proceed to its vicinity. They do
not watch or look; they surveil. They never see
anything; they observe it. No one tells them anything;
they are advised. A person does not tell them his
name; he identifies himself. A person does not say
something; he indicates. They do not listen to a
telephone conversation; they monitor it. People
telephoning to each other do not say “hello”; they
exchange greetings. An agent does not hand money
to an informer to make a buy; he advances previously
recorded official government funds. To an agent, a
list of serial numbers does not list serial numbers; it
depicts Federal Reserve Notes. An agent does not
say what an exhibit is; he says what it purports to
be. The agent’s preface answers to simple and direct
questions with “to my knowledge.” They cannot
describe a conversation by saying “he said” and “I
said”; they speak in conclusions. Sometimes it takes
the combined efforts of counsel and the judge to get
them to state who said what. Under cross
examination, they seem unable to give a direct answer
to a question, they either spout conclusions, or do
not understand. This often gives the prosecutor, under
the guise of an objection, an opportunity to suggest
an answer, which is then obligingly given.
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Essential Skills for Paralegals: Volume II
chapter 5
Law Library Litigation Support
§ 5.1 THE PARADOX OF LITIGATION
The best attorneys have a secret. They have a tenet
that guides their work, and makes them much more
productive.
The tenet is this:
Never, ever work when you don’t have to.
In other words, “Don’t recreate the wheel!” This is a
valuable piece of advice. Lawyers do relatively little
original work. This is not a criticism. The best and
most productive lawyers rely on form books and
litigation aids. They don’t create the law themselves,
of course, but rely on previously existing authority
(stare decisis). They find annotations, law reviews
and other materials to help them create legal
arguments.
The paradox is this: The best lawyers are the ones
who rely on previously existing materials. And it
works for paralegals just as well as it does for lawyers!
Think of it. Let’s assume that when you get your first
job, you are asked to draft a Motion for Summary
Judgment. Ask yourself:
•
•
•
•
Do you start from scratch?
Do you think there is the possibility that
the firm has a previously existing example
of that document?
Maybe even a form?
Or, if you’re lucky, a template?
Why would you make your job harder by failing to
utilize forms or templates that have been created for
just such a purpose? As with lawyers, the best
paralegals rely on previously existing materials!
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§ 5.2 DEFINITIONS
Forms are examples of previously existing documents.
Templates are previously existing computer files that the
paralegal uses to “fill in the blanks.”
Form books are publications containing examples of various
forms. Form books may also contain other litigation
assistance, such as checklists or litigation outlines for the
topic being researched.
Legal Treatises are law books published by a private
company that attempts to educate the researcher as to the
theory and strategies of litigation relating to the project
being researched.
Some attorneys refer to form books and legal treatises as
being synonymous. In fact, most law libraries collect form
books and treatises together. And some books, such as
Am. Jur. Proof of Facts, are essentially a combination of a
form book and a legal treatise.
§ 5.3 FORM BOOKS
A form book is a publication that attempts to provide
examples, templates, guidelines, checklists, and other
assistance to an attorney or paralegal. Some would call a
form book a kind of treatise. A treatise is a law book
written by a private individual on a specific area of law.
The main difference between a treatise and a form book is
that, although treatises may have some forms, they cover
a specific area of law, whereby form books generally attempt
to provide assistance in virtually every area of law.
For a paralegal, form books are a wealth of information. As
mentioned previously, why create something from scratch
when a form or template is available? Not only does the
form make your job easier, it saves your client money and
makes you a more productive paralegal.
In addition, form books may provide sample interrogatories,
requests for admissions, requests for production of
documents, deposition questions, and even examples of
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Essential Skills for Paralegals: Volume II
trial examination questions. Therefore, the paralegal has
instant access to thousands of questions that may pertain
to discovery preparation.
Finally, some form books provide checklists. These lists
can assist the paralegal in making sure that the correct
procedures have been followed when creating a document
or engaging in a prescribed activity, such as serving process
on a defendant.
On the following page are a few examples of form books
that may be found in your law library. There is no way for
the author of this manual to know the publications
available in your law library. There should be dozens of
publications available in your law library, so be flexible,
and substitute other form books if necessary.
§ 5.4 ASSIGNMENT:
LOCATING FORM BOOKS
Instructions: Locate and become familiar with as many
of the following form books as you can. Be aware that
not every law library will subscribe to the same form
books.
1. Am. Jur. Legal Forms
A very popular set of forms. If your topic is covered, the
index will lead the researcher to the main volumes of the
form book. This form book includes examples of
instruments, such as contracts, wills, and leases, as well
as selected pleading and discovery documents.
Does your library have Am. Jur. Legal Forms?
yes
no
2. Am. Jur. Pleading and Practice Forms
An excellent source for general litigation forms.
extensive. Accessed by a General Index.
Very
Does your library have Am. Jur. Pleading and
Practice Forms?
yes
no
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3. Bender’s Discovery Forms
An incredible form book, this multi-volume, three-ring binder
set contains hundreds of discovery examples. More user
friendly than it looks.
Does your library have Bender’s Discovery?
yes
no
4. West’s Legal Forms
A very good form book. West’s Legal Forms are more userfriendly than most form books, and generally easier to
access.
Does your library have West’s Legal Forms?
yes
no
5. Cause of Action
A different kind of form book, this publication by Shepard’s
will suggest causes of action even your attorney hasn’t
considered!
Does your library have Cause of Action?
yes
no
6. Additional Form Books
Can you locate any other form books in your law library? If
yes, list them below.
__________________________________________
__________________________________________
__________________________________________
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Essential Skills for Paralegals: Volume II
§ 5.5 EXAMPLE OF A FORM BOOK
Bender’s Discovery forms are an
excellent example of a form book.
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§ 5.6 INTERACTIVE STUDY:
AM. JUR. PROOF OF FACTS
Am. Jur. Proof of Facts (POF) is a legal form book by
Lawyer’s Cooperative Publishing Company. It is unlike
any other form book. In fact, it does just what it claims:
it sets forth the facts that will have to be proved at trial,
then tells the researcher just how to establish those
facts, or how to challenge facts alleged by the opposition.
POF provides the standards for which facts must be
proven at trial in order to succeed. It provides traditional
research tools, as well as those found nowhere, but in
Proof of Facts.
Following is a guide to utilizing Am.Jur. Proof of Facts.
The Index
The researcher begins in the Proof of Facts General
Index (POF). There is a single index that covers all
the POF series. The index leads the researcher to a
volume, series, page, and sometimes a section within
the main volumes.
Assignment A
1. Look up your topic in the POF General
Index. Where does it lead you?
2.
To a topic and volume number
To a volume, series, and page number
How many volumes are there to the POF
General Index?
94
To a topic and section number
One
Two
Other ___________ (Specify)
Essential Skills for Paralegals: Volume II
Main Volumes
The point the researcher is led to in the Main Volumes
usually starts with the topic of the article, or subject
matter. POF then provides a Table of Contents for
the article.
Assignment B
1. What was the specific location that you were led
to by the Index?
(Example: 26 POF2d 141)
___________________________________
2. What is the topic of your article?
___________________________________
3. Does your article have a Table of Contents?
yes
no
The Article
Which of the following POF research tools are
included in your article?
Index to the POF Article
This index will lead only to points within
the article itself.
Total Client Service Library
This is the research system developed by
the publisher of POF, and other books,
Lawyer’s Cooperative Publishing Company.
The Article
The article typically provides extensive
commentary, including detailed discussion
on the topic being researched, as well as
references to other authorities.
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95C
Sample Examination Questions
These are fantastic sources for developing interview
questions, interrogatories, or even preparing
deposition or trial examination questions for the
attorney. POF may even provide anticipated
responses to examination questions.
Illustrations
These examples are provided to help the
researcher anticipate various situations.
Checklists
A wonderful resource, if it is provided. Helps
to organize the entire litigation process.
Specific Elements that Must Be Proven
This is very useful in helping the attorney
establish a prima facie case, but also may
help the paralegal prepare everything from
the Complaint to discovery documents.
Model Discovery
Examples of discovery documents. Obviously,
very useful.
Model Pleadings
Examples of pleadings. Again, very helpful.
The Supplements
Am.Jur. Proof of Facts updates the main volumes
with supplements, or pocket parts, found in the
back of each individual volume. Be sure to check
the pocket part to make sure you have the most
up to date information on your topic. Just look
up the same page number in the pocket part.
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Essential Skills for Paralegals: Volume II
Assignment C
1. Does your volume have a pocket part?
yes
no
2. Is your article updated in the pocket part?
yes
no
Am.Jur. POF Fact Book
This single-volume book, the Am.Jur POF Fact
Book, provides hundreds of fascinating facts,
from how to properly amputate an arm to how far
apart airplanes should be when they’re landing.
In addition, in the back of the Fact Book you will
find a wonderful Medical Glossary. While your
topic may not be covered in the fact book, it’s
worth it just to take a look!
Assignment D
1. Does your library have a POF Fact Book?
yes
no
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Essential Skills for Paralegals: Volume II
chapter 6
Litigation Documents
§
Study Support
6.1 THE SUMMONS
Process is the summons and complaint. Service of process,
then, is the presenting of the summons and complaint upon
a defendant in a legal action. (Preparing a complaint is
discussed on the following pages.)
Use the forms and
templates on the
Web site and
Support CD-ROM.
Technically, a summons is not a pleading.
It is an
instrument. However, when organizing documents, it is
usually placed in the pleading portion of a client’s file.
Serving the summons and complaint fulfills one of the due
process requirements of a lawsuit. Everyone has a due
process right to know why they are being sued and by whom
they are being sued. This is called notice. If notice is not
properly effectuated, the lawsuit will be dismissed.
Jurisdictions have varying requirements for the summons,
and for the service of the summons. Check with your attorney or other paralegals for examples and procedures in your
jurisdiction. Your instructor will also most likely provide
information regarding local requirements, as well.
The typical requirements for successfully noticing a defendant are:
1. The original complaint and a copy of the summons
are filed with the court. (This is usually done before
process is served. Jurisdictions that allow the filing
following service vary).
2. The summons and complaint must both be served
upon the defendant.
3. They must be served by someone who is not a
party to the action who is at least 18 years of age.
4. The Affidavit of Service, also called Return of Service, must be filled out by the person who serves the
documents.
5. The Affidavit of Service, also called Return of Service, must be filed with the court.
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To serve the documents, you may want to hire a process
server. Just look in the yellow pages, or information.
The typical cost is $50 to $100 for a private process
server. In some jurisdictions, the sheriff in the county
may serve legal documents. The cost is considerably
less, but it usually takes longer.
Service by publication is possible, but not usually recommended. First of all, you must publish notice of the legal
action for a few weeks. The time varies by jurisdiction.
Then affidavits must be prepared along with a Motion for
Default Judgment. Your court rules will spell out what
affidavits are required, but typically they involve attesting to your efforts to locate the defendant, what the
action is about, and swearing to the amount of damages. Even after all the above steps have been taken,
some courts will require additional steps to personally
serve documents.
In any case, filing the Affidavit of Service with the court
immediately is critical. This is referred to as perfecting
service.
For this exercise, each student will prepare a summons
based upon their assigned clients.
A note about jurisdiction
The proper jurisdiction for filing a matter can be affected
by all of the following:
Whether the matter is a state or federal issue
Where the plaintiff and defendant live (in personam)
Where the litigated matter happened (in rem)
The amount of damages being claimed
The subject matter of the litigation
Having noted this, be aware that a paralegal will never
be in a position to determine the court in which a matter
will be filed. To do so would call for fundamental legal
judgment, which would constitute an unauthorized
practice of law. The attorney will determine the
appropriate jurisdiction.
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§
6.2 SUMMONS EXAMPLE
DISTRICT COURT OF CLARK COUNTY
STATE OF CONFUSION
JOHN DOE
Plaintiff,
vs.
SUMMONS
PHILLIP DUNCAN
Defendant.
__________________________________________
SUMMONS
NOTICE! YOU HAVE BEEN SUED. THE COURT MAY DECIDE AGAINST YOU WITHOUT YOUR BEING HEARD
UNLESS YOU RESPOND WITHIN 20 DAYS. READ THE INFORMATION BELOW.
TO THE DEFENDANT(S): A civil Complaint has been filed by the Plaintiff against you for the relief set forth in the Complaint.
1.
If you intend to defend this lawsuit, within 20 days after this Summons is served on you, exclusive of the day of
service, you must do the following:
a.
File with the Clerk of this Court, whose address is shown below, a formal written response to the
Complaint in accordance with the rules of the Court, with the appropriate filing fee.
b.
Serve a copy of your response upon the attorney whose name is shown below.
2.
Unless you respond, your default will be entered upon application of the Plaintiff and this Court may enter a
judgment against you for the relief demanded in the Complaint, which could result in the taking of money or
property or other relief requested in the Complaint.
3.
If you intend to seek the advice of an attorney in this matter, you should do so promptly so that your response may
be filed on time.
4.
The State of Confusion, its political subdivisions, agencies, officers, employees, board members, commission
members and legislators, each have 45 days after service of this Summons within which to file an answer or other
responsive pleading to the Complaint.
Issued at the direction of Sally Smooth
CLERK OF COURT
___________________________
Sue M. Daily
Attorneys for Defendant/Counter-Claim
Plaintiff, Third-Party Plaintiff,
By:_________________________________
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§
6.2 THE COMPLAINT
The complaint is the pleading that initiates a legal
action. While the summons informs a defendant that
she or he is being sued, the complaint tells him or her
why the suit is being commenced.
There are five elements to a complaint:
Caption (or Style)
Jurisdiction
Cause of Action
Ad Damnum Clause
Subscription
Caption (or Style)
Every state has its own form of caption at the top of
every pleading. Some states even have different
forms for different counties. The federal courts have
their own form of caption as well. Every caption will
include:
The title of the document
The Court where the matter is being filed
The names of the parties (Plaintiff and
Defendants)
For this document the title will be “Complaint.” Some
attorneys prefer to be more specific in the title, such
as, Complaint for Negligence, or Complaint for Breach
of Contract. Ask the attorney what she or he prefers
as the title. If you are unsure of how the court
caption looks in your jurisdiction, there are two simple
ways to determine the style. The easiest way is to
simply ask the attorney for a previous example of a
Complaint filed in the same court. If that is not
possible, go to the court clerk’s office, and ask to see
any file that is public record. Almost all documents
filed with the court are public record, meaning that
you have a right to view the file. Locate the Complaint
and copy it. The caption is sometimes referred to as
the style.
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Essential Skills for Paralegals: Volume II
Jurisdiction
Somewhere in the document, the court must be given a
reason to hear the matter. In personam jurisdiction is
jurisdiction over the person. In rem jurisdiction is
jurisdiction over the controversy. There are many other
forms of jurisdiction, as well. While additional methods
exist to establish jurisdiction, the most common manner
is to simply state in the first two or three paragraphs at
least one of the following:
The address of the plaintiff
(establishes in personam jurisdiction)
The address of the defendant
(establishes in personam jurisdiction)
Address where the controversy took place
(establishes in rem jurisdiction)
A common example of the jurisdictional paragraphs would
be:
1. Plaintiff is now and at all times relevant has been
a resident of El Paso County, Colorado.
2. Defendant is now and at all times relevant has
been a resident of Kiowa County, Colorado.
3. The business the parties own is now and at all
times relevant has been located in Denver County,
Colorado.
The above statements actually establish potential
jurisdiction in three different counties: El Paso County
could have in personam jurisdiction, Kiowa County could
have in personam jurisdiction, and Denver County could
have in rem jurisdiction. Of course, the Plaintiff would
have to choose which jurisdiction in which to file, and
would most likely choose his or her own county of El
Paso.
Federal complaints often have a formalized heading titled
Jurisdictional Statement followed by the same sort of
paragraph described above.
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Cause of Action
A Cause of Action is a legitimate reason to sue.
Also called Claim for Relief, every complaint must
have at least one Cause of Action. There are
hundreds of possible claims. The attorney will
determine what claims are to be included in the
complaint. Just a few examples of some common
claims include:
Negligence
Negligence per se
Breach of Contract
Intentional Infliction of Emotional Distress
Misrepresentation
For a cause of action to succeed, it must establish a
prima facie case. This means that the allegations,
if they are eventually proven true at trial, could result
in the Plaintiff being awarded damages. If the
allegations do not constitute a valid prima facie case,
the Defendant may file a Motion to Dismiss.
Ad Damnum Clause
Also called the Wherefore Clause, or Prayer for Relief,
the Ad Damnum Clause tells the court specifically
what the Plaintiff is asking for. A typical Ad Damnum
Clause would be:
Wherefore, Plaintiff requests damages
in an amount to be determined at trial,
attorney’s fees and court costs, and
for such other and further relief as the
court deems just and proper.
Make sure to review previous complaints your
attorney has filed for the format he or she prefers.
Lawyers tend to stick with the Ad Damnum Clause
they first learned, and grow comfortable with that
style. Present the document in a form with which
the attorney is most familiar.
Subscription
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Essential Skills for Paralegals: Volume II
A subscription looks, simply, like a signature, with the
name of the attorney, his or her bar association number,
the address and phone number of the attorney. In legal
terms, it is much more than a simple signature. By
signing the document, the attorney is attesting that, to
the best of her or his knowledge, the information provided
is correct.
Numbering Paragraphs
Each paragraph should be numbered. The numbers may
be standard Arabic numbers or Roman numerals. They
may appear at the left hand side of the paragraph, or
centered above each paragraph. But the best bet is to,
again, notice how the attorney has numbered previously
existing complaints. Always try to create a document with
which the attorney feels familiar.
A paragraph in a complaint may contain a single sentence
or multiple sentences, depending on whether the jurisdiction
requires fact pleadings or notice pleadings (see below).
In any case, each paragraph must contain a specific element
tending to establish the claim being made.
Fact Pleading States v. Notice Pleading States
Some states require that each individual fact amounting
to a prima facie case be set forth in the complaint. These
are called fact pleading states. Some states, however,
only require that sufficient notice be presented as to the
allegations to be claimed at trial. These are referred to as
notice pleading states. While not a perfect determinant,
one way to tell the two kinds of pleadings apart is that
fact pleading states tend to contain one sentence per
paragraph. Each sentence tends to be a part of the prima
facie case being presented. Notice pleading states tend
to contain longer, multi-sentence paragraphs. It’s also
possible to simply ask your attorney.
Note regarding verified complaints
To verify a complaint means to have the Plaintiff attest to
its validity. The attestation usually occurs at the very end
of the document. In most cases, complaints are not verified.
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§
6.3 CAUSES OF ACTION
A tort is a civil wrong. A contract is a legally binding
agreement between parties. Commissions of torts and
breaches of contracts constitute the vast majority of
causes of action in civil litigation. Following is an
introduction to some basic torts and breaches of contracts
that could be claimed in civil matters.
INTENTIONAL TORTS
DEFAMATION, LIBEL, and SLANDER
Damage to a party’s reputation, image or standing in
the community.
WRONGFUL (OR FALSE) IMPRISONMENT
Restriction of an individual’s freedom of movement,
physically or mentally.
MALICIOUS PROSECUTION AND ABUSE OF PROCESS
Forcing a party to defend himself or herself against
baseless prosecution.
TRESPASS and NUISANCE (ENVIRONMENTAL TORTS)
Unwarranted and unauthorized entry on one’s property
or the devaluation of enjoyment of one’s property due
to intrusive acts of another.
ASSAULT The imminent fear for one’s well-being.
Legal Junk Food
The defendant was charged
with murder. After arraignment, the matter of setting
bail became a heated issue.
The People urged that
$50,000 should be the minimum amount because the
defendant had a long record.
The deputy public defender
was momentarily stunned at
the large bail demand, but he
regained his composure and
said, “That amount of bail is
outrageously excessive…er,
well, after all, this is only the
defendant’s first murder.”
106
BATTERY Unauthorized touching of a person.
MISREPRESENTATION Deceit. Knowingly misleading
another.
CONVERSION
property.
Unauthorized transfer of money or
INTENTIONAL INFLICTION of EMOTIONAL DISTRESS
Doing mental or psychological harm by act or omission.
Essential Skills for Paralegals: Volume II
NEGLIGENT TORTS
NEGLIGENCE Establishment of a duty, followed
by a breach of that duty, and an establishment
of damages. (For compensation to be awarded,
it must be established that the negligence was
the proximate cause of the damages.)
NEGLIGENCE PER SE Negligence while violating
the law.
WRONGFUL DEATH
negligence.
Death due to another’s
CONTRACTS
BREACH OF CONTRACT Failure to fulfill written
or oral commitments.
BAD FAITH Entering into an agreement with no
intention of fulfilling obligations.
BREACH OF FIDUCIARY DUTY Failing to act in
the best financial interest of a party when there
exists an obligation to do so.
§
6.4 CAUSES OF ACTION EXERCISE
Identify the relevant cause of action in the following:
1. An elderly woman lives in an apartment. It is winter and a
portion of the sidewalk has developed a one-foot deep, twofeet by two feet wide pothole. The management places a piece
of plywood over the hole, but when it snows the wood becomes
icy and difficult to walk on. Despite repeated complaints from
tenants, nothing
is done to repair the sidewalk for three (3)
months. One morning the elderly woman walks across the
plywood and it breaks. She falls, breaking her ankle.
2.
An attorney has agreed to take a divorce case. The client is
concerned that the settlement agreement is fairly one-sided in
favor of his wife. The attorney assures his client that the
agreement is fair. Shortly after the decree is entered, the
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§
6.5 ESTABLISHING CAUSES OF ACTION
Causes of Action comprise the body of the complaint. Be
aware that there are many methods of drafting complaints
and establishing valid causes, each as valid as the other.
It is important to realize that while a paralegal can certainly
lose a case in the complaint, she or he will never win a
case in the complaint. If the complaint does not contain
at least one valid cause of action, the court can dismiss
the case. No matter how well crafted the complaint, no
matter how beautifully written and convincingly presented,
you will never win the matter in the complaint. It will still
have to go to trial, most likely. So while you want to draft
a strong set of allegations, you don’t try to prove anything
at this stage. Just allege the facts and damages. The
proving will come at trial.
One of the most effective forms of establishing valid claims
for relief is called the 3-step Cause of Action. That is what
is presented here. Your instructor may have his or her own
method of drafting a complaint. If so, follow your
instructor’s method. As a paralegal, part of your job is to
be flexible. Every attorney believes that his or her way is
the most appropriate. When the author of this manual
was working for seven litigation attorneys, there were
seven “most appropriate ways” to draft a complaint. Get
used to it. Don’t fight it. Prepare documents in the manner
the attorney instructs you.
General Allegations
The 3-Step Cause of Action relies on the author first drafting
a thorough set of General Allegations, sometimes referred
to as Common Allegations or other terms. The first couple
of paragraphs within the General Allegations will be the
jurisdictional statements, followed by a setting forth of
the facts that are being alleged. Be aware that the facts
that are alleged must include some sort of damage.
Without damages, there is no case! For instance, if a
manhole cover is left off the manhole, that would certainly
be negligent. Unless someone falls in and is injured, or
damaged, by the negligent act, there is no actionable
case. Following is an example of General Allegations.
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Essential Skills for Paralegals: Volume II
GENERAL ALLEGATIONS
(Against All Defendants)
I.
Plaintiffs are now and at all times relevant have been residents of Clark County, State of Confusion.
II.
Defendants are now and at all times relevant have been residents of Clark County, State of Confusion.
III.
On or about October 23, 2004, Defendant was driving a taxi, in which Plaintiff(s) were passengers.
Defendant, traveling north on Sahara Blvd., was traveling 60 m.p.h. in a 30 m.p.h. zone.
IV.
At the intersection of Sahara and Paradise Road, Defendant failed to stop for a red light.
V.
Defendant’s taxi subsequently struck a vehicle traveling south bound on Paradise Road. The vehicle
which was struck possessed the right of way.
VI.
Both Plaintiffs suffered severe damages as a result of the accident requiring lengthy hospitalization.
VII.
Both Plaintiffs have been forced to miss work and employment opportunities due to the accident.
VIII.
As a result of this litigation, Plaintiffs have secured the services of an attorney.
Once the General Allegations have been established, the 3Step Cause of Action is used for each Claim being made. For
instance, if negligence a negligence per se are the two claims,
the writer would go through the 3-Step Cause of Action twice,
once for each claim.
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§
6.6 THE CLAIMS
Begin by captioning the claim, such as:
FIRST CLAIM FOR RELIEF
Negligence
Keeping in mind the facts that were established, or at least
alleged, in the General Allegations, follow these three steps:
1. Incorporation Paragraph
2. Allege the Cause of Action
3. Allege Damages as a Result of the Cause of Action
1. Provide Incorporation Paragraph.
This paragraph incorporates by reference all the facts
and allegations contained in the previous paragraphs.
For example, “Plaintiff hereby incorporates and realleges
Paragraphs 1 through 7, as though fully set forth at length
herein.” Yes, it’s legal jargon. The advantage is that it
cuts down on space, not requiring the restatement of
facts alleged in previous causes of action.
2. Allege the Cause of Action.
Whatever the cause of action being claimed is, allege
that the defendant’s conduct amounted to that claim.
For example, “Defendant had a duty to properly obey the
traffic laws of the state and county where the accident
occurred, and by failing to do so acted in a negligent
manner.” If the matter had been a breach of contract
case, the paragraph might read, “Defendant, by her
failure to provide the items ordered and paid for is currently
in breach of that contract.” The writer is simply establishing
the claim as a result of the defendant’s stated conduct.
3. Allege Damages as a Result of the Cause of Action.
To be actionable, the plaintiff generally must claim
that he or she suffered damages (although there are
exceptions). For example, “As a result of Defendant’s
negligent conduct stated above, Plaintiff has suffered
specific damages, including but not limited to medical
expenses and lost wages.” Or, in the breach of contract
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Essential Skills for Paralegals: Volume II
matter, “Plaintiff, as a result of Defendant’s breach of
contract, has suffered loss of potential earnings and
lost contracts with retailers who were promised the
contracted for items.”
Thus we have created a valid cause of action.
FIRST CAUSE OF ACTION
Negligence
VIII.
Plaintiff hereby incorporates and realleges Paragraphs
1 through 7, as though fully set forth at length herein.
IX.
Defendant had a duty to properly obey the traffic laws
of the state and county where the accident occurred,
and by failing to do so acted in a negligent manner.
X.
As a result of Defendant’s negligent conduct stated
above, Plaintiff has suffered specific damages, including
but not limited to medical expenses and lost wages.
Again, it is important to accept that your attorney or instructor
may prefer a different approach. There is no single correct way to
draft a complaint. If necessary, modify your document to the style
that the attorney or instructor prefers.
Note about open line indicators
If there are lines with no print at the bottom of a page, indicate
that the line has been left blank intentionally by placing “// // //”
on each open line. This prevents others from adding text to the
line, which, believe it or not, has happened.
Pleading Paper
Pleading paper is numbered on the left hand column. The standard
is 28 lines. Not all jurisdictions require pleading paper. If a
jurisdiction requires pleading paper for pleadings, it will also be
used for other documents filed with the court, and for discovery
documents. Pleading paper is commonly used for deposition
transcripts, even in jurisdictions not requiring it for pleadings.
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§
6.7 EXAMPLE OF A COMPLAINT
Attorney Name
Address, Phone
Bar Number
DISTRICT COURT
STATE OF CONFUSION
CASE NO.:
JOHN and SALLY SMITH,
Plaintiffs,
v.
COMPLAINT
JACK DOE.
Defendants.
Comes now the Plaintiffs, and for cause of action against the Defendant(s), and each
of them, complain and allege as follows:
GENERAL ALLEGATIONS
(Against All Defendants)
I.
Plaintiffs are now and at all times relevant have been residents of Clark County, State of
Confusion.
II.
Defendants are now and at all times relevant have been residents of Clark County, State
of Confusion.
// // //
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III.
On or about October 23, 2004, Defendant was driving a taxi, in which Plaintiff(s) were
passengers.
Defendant, traveling north on Sahara Blvd., was traveling 60 m.p.h. in a 30 m.p.h. zone.
IV.
At the intersection of Sahara and Paradise Road, Defendant failed to stop for a red light.
V.
Defendant’s taxi subsequently struck a vehicle traveling south bound on Paradise Road.
The vehicle
which was struck possessed the right of way.
VI.
Both Plaintiffs suffered severe damages as a result of the accident requiring lengthy
hospitalization.
VII.
Both Plaintiffs have been forced to miss work and employment opportunities due to
the accident.
VIII.
As a result of this litigation, Plaintiffs have secured the services of an attorney.
FIRST CAUSE OF ACTION
Negligence
IX.
Plaintiffs hereby incorporate and reallege Paragraphs I through VIII, as though fully set forth
at length herein.
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X.
Defendant had a duty to properly obey the traffic laws of the state and county where the accident
occurred, and by failing to do so acted in a negligent manner.
XI.
As a result of Defendant’s negligent conduct stated above, Plaintiffs have suffered specific damages,
including but not limited to medical expenses and lost wages.
SECOND CAUSE OF ACTION
(Negligence per se)
XII.
Plaintiffs hereby reallege and incorporate by reference Paragraphs I through XI, inclusive,
as if set out in full herein.
XIII.
Defendant owed a duty to the users of the public roadways to operate their vehicle in
a manner consistent with the laws of the State of Confusion.
XIV.
As a direct and proximate result of the Defendant’s speeding, Defendant was negligent
per se, and Plaintiffs suffered specific damages.
WHEREFORE, Plaintiffs pray for judgment against the Defendant as follows:
1.
For general damages in excess of $10,000.00 according to proof,
2.
For loss of earnings and earning capacity according to proof,
3.
For medical expenses, future medical expenses and all incidental expenses
according to proof,
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4.
For interest from the date of accident to the time of judgment;
5.
For costs of suit incurred herein;
Essential Skills for Paralegals: Volume II
6.
For attorney fees incurred herein, and
7.
For such other and further relief as the Court deems proper.
DATED this ____ day of October, 2004.
_____________________________
Attorney Name
State Bar No. 1907
Address
Attorney for Plaintiffs
// // //
// // //
// // //
// // //
// // //
// // //
// // //
// // //
// // //
// // //
// // //
// // //
// // //
// // //
// // //
// // //
// // //
// // //
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This assignment is
optional, and may be
replaced by in-class
discussion, at the
discretion of the
instructor.
§ 6.8
THE ANSWER
The answer is an important document because it fulfills
part of the basic procedure of litigation: the defendant
responding to the claims made by the plaintiff in the
complaint. Fortunately, the answer is also one of the
easiest documents a paralegal will ever create. The
answer must respond to each allegation in the
complaint. Since the allegations in the complaint are
usually broken into individual paragraphs, it is a simple
matter of making clear to the court which paragraphs
are going to be admitted, which are going to be denied,
and which are going to be denied due to insufficient
information.
You are not going to win your case in the answer, so
don’t present arguments, reasons, explanations, or
detailed defenses. Just admit or deny the allegations.
The arguments will come at trial. An admission cannot
be withdrawn. So when in doubt, deny!
When answering a complaint, each paragraph of the
complaint should be admitted, denied, or neither
admitted nor denied due to lack of knowledge. To
accomplish this, draft three paragraphs.
In the first paragraph, admit any paragraphs from
the Complaint that cannot be denied. For example:
1.
Defendant hereby admits allegations
contained in paragraphs 1, 4, and 5 of
Plaintiff’s Complaint.
In the second paragraph, deny any paragraphs from
the Complaint. For Example:
2.
Defendant hereby denies any allegations
contained in paragraphs 2, 3, 6, 7, 8, and
9 of Plaintiff’s Complaint.
The third paragraph addresses paragraphs that the
defendant is unable to answer. Example:
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Essential Skills for Paralegals: Volume II
3.
Defendant is without sufficient knowledge
to answer paragraphs 10 and 11 of Plaintiff’s
Complaint, and therefore denies the same.
Affirmative Defenses
Affirmative defenses are often included with the Answer
in a separately captioned section. They admit that an
event occurred, but do not admit any liability for the
event. An affirmative defense does not claim that the
defendant suffered damages. If it did, that would
constitute a counterclaim instead of an affirmative
defense. Examples include bankruptcy, a claim upon
which relief cannot be granted, and statute of limitations.
Affirmative defenses are not required.
Counterclaim
If the defendant claims that she or he was damaged by
the plaintiff, the defendant should include a counterclaim
within the answer. It is basically a complaint by the
defendant, and should contain all the elements of a
complaint, except that the caption does not have to be
repeated. Instead, the caption for the document would
read, “Answer, Affirmative Defenses, and Counterclaim.”
ASSIGNMENT 6.8a
Students may switch sides in their client’s case for this
assignment, or they may use the following scenario to
create an answer.
Affirmative Defenses and
Counterclaims are optional.
Your attorney, Judy Ross, calls you into her office. She
tells you she just took a case. The complaint was filed
more than two weeks ago, so the answer is almost due.
All she wants you to do is draft an answer. She provides
you with the basic following information.
The case is Ann Haverhill v. Gene Villipiano. The court
case number 03-1438. Your attorney wants you to admit
paragraphs 1 and 2, deny paragraphs 3, 5, 6, and 7, and
deny paragraph 4 due to insufficient information. Your
affirmative defenses are “Failure to state a claim upon
which relief can be granted” and “Assumption of the
risk.”
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§
6.9 EXAMPLE OF AN ANSWER
Attorney Name,
Address, Phone
And Bar Number
DISTRICT COURT
STATE OF CONFUSION
JOHN and SALLY SMITH,
Plaintiffs,
v.
ANSWER AND
AFFIRMATIVE DEFENSES
JACK DOE,
Defendants.
Comes now Defendant by and through his attorneys of record, and as and for its
answer to the complaint filed herein, hereby admits, denies, and alleges as follows:
ANSWER
1.
Answering paragraph 1 of Plaintiffs’ complaint, this answering Defendant is
without sufficient knowledge or information necessary to form a belief as to the truth or
falsity of the allegation contained therein and therefore the same.
2.
Answering paragraphs 2, 3 and 4 of Plaintiffs’ complaint, this answering defendant
admits the allegations contained therein.
3.
Answering paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 of
Plaintiffs’ complaint, this answering Defendant is without sufficient knowledge or
information necessary to form a belief as to the truth or falsity of the allegations
contained therein and therefore denies same.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
1. Defendant hereby avers and alleges that Plaintiff fails to state a claim upon which relief
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can be granted in the complaint.
SECOND AFFIRMATIVE DEFENSE
2. Defendant hereby avers and alleges assumption of the risk as an affirmative defense in
this matter.
THIRD AFFIRMATIVE DEFENSE
3. Defendant hereby avers and alleges the injuries, if any, suffered by Plaintiff, as set
forth in the complaint, were caused in whole or in part by the negligence of a third-party
over whom Defendant had no control.
WHEREFORE, Defendant, JACK DOE, prays for judgment follows:
1. That Plaintiff takes nothing by way of the allegations contained in his complaint;
2. For an apportionment of damages and proportion to the degree of fault of each
responsible person or entity;
3. For costs of suit incurred herein;
4. For reasonable attorneys fees; and
5. For such other and further relief as the court may deem just and proper.
Dated this ______ day of _______, 2004.
________________________________
Attorney Name
State Bar No. 7190
Address
Attorney for Defendant
CERTIFICATE OF MAILING
I hereby certify that on this
day of March, 2004, I placed a true and correct
copy of the foregoing ANSWER AND AFFIRMATIVE DEFENSE TO PLAINTIFFS’ COMPLAINT in the
United States Mail, postage prepaid, addressed to counsel on the attached service list:
_____________________________________________
An employee of
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Assignment
Based upon the same facts
as the complaint previously
prepared students will
create the following
discovery documents:
Interrogatories
(20 questions)
Request for Admissions
(20 statements)
Request for Production
(5 requests)
§
6.10 INTRODUCTION TO DISCOVERY
The following pages contain interactive study regarding
discovery documents. They will be completed in class,
unless otherwise instructed. For the fill-in-the-blank
questions, try to be brief, but additional paper may be
used if necessary. Remember that the Exercises are
primarily designed to encourage the thought process.
They are not graded.
Discovery
Evidence is needed by each party to a lawsuit to
support its side of the case. Both parties attempt to
gather the necessary evidence to win at trial. A
paralegal is intimately involved in this process.
Discovery is the vehicle by which both parties to a
lawsuit are entitled to certain facts, documents and
other information while preparing for trial. Discovery
serves three functions:
•
•
•
To clarify issues
To eliminate the element of surprise
To limit the length of trial
Every attorney knows that lawsuits are won by hard
work during the pre-trial stage. The best, and smartest,
attorneys utilize every tool available to them for the
benefit of their clients. The paralegal is one of the
most powerful tools an attorney possesses. When an
attorney hears the term “pre-trial,” he or she thinks
“discovery.” The four most commonly utilized discovery
techniques are:
1.
2.
3.
4.
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Interrogatories
Request for Admissions
Request for Production and Inspection
of Documents
Depositions
Essential Skills for Paralegals: Volume II
§
6.11 THE INTEGRITY OF THE PROCESS
A judge in Hawaii was speaking to a group of paralegal
graduates. The speech centered around the topic of proper
utilization of paralegals in a law firm. During the talk, the
judge spoke about a paralegal’s role during the discovery
process. The judge was unusually passionate about the
subject, and made some very good points:
Discovery can determine the outcome of a trial
As discussed previously, this is important for the paralegal
to understand. The work you do during this stage for your
client is not incidental, but essential to the results of
litigation.
The discovery process is an honorable concept
The purpose of going to trial is not to win, but to seek
justice. For justice to prevail, the relevant facts should be
exposed. The discovery process requires parties to disclose
all relevant facts, even those facts that damage the party
making the disclosure. While not typical, some attorneys
pride themselves on their ability to avoid or circumvent the
discovery process. This is not only unethical, it is corrosive
to the litigation process.
Don’t compromise your ethics for anyone
As a paralegal, do not engage in obstructive or evasive
techniques. Maintain your ethics, and help your attorney
maintain her or his ethics. In a very real way, the integrity
of the litigation process is at least partially in your hands.
What can a paralegal do?
What should a paralegal do if asked to perform a task that
is evasive or deceptive? Talk to the attorney about it.
Maybe there is a reason for the conduct not apparent to the
paralegal. At some point, the paralegal may need to ask
the attorney a simple question.
“Is this really the purpose of discovery?”
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§
6.12 INTERROGATORIES
One of the most economical and productive fact-finding methods
during the pre-trial process is the discovery device of
interrogatories. Interrogatories, from the word “interrogate,”
are written questions to the other party, or general requests for
information relevant to the litigation. They are responded to
under oath. Requests for Admissions are attempting to paint
the opposing party into a legal comer, while Interrogatories
paint with a very broad brush.
At any time after the suit is filed, either party may set forth
interrogatories to the opposing party. While all discovery must
be relevant to the issues being tried, interrogatories may be
general and cover extensive matters, attempting to cast a broad
net in order to obtain as many facts as possible.
Discovery Point
Discovery is intended to expose all relevant facts which
will help the court reach a fair decision. Even if the
information is damaging, the party must disclose it.
Many jurisdictions have in the past required interrogatories and
their responses to be filed with the court. Most jurisdictions
have eliminated this requirement. Note that federal rules still
generally require the certificate of mailing, or receipt of copy, to
be filed. After the caption and the “comes now paragraph,”
many attorneys include specific instructions regarding the
responses. While not required, these instructions may include
such subjects as who responds to the interrogatories, how certain
individuals are referred to, what certain terms or phrases mean,
and other guidance. These instructions should also state the
continuing nature of the interrogatories. This means that even
after initial discovery deadlines and responses, the responding
party must inform the party requesting discovery if additional
or subsequent information becomes available.
Discovery Point
One complaint about instructions is that they are often
complex and difficult to decipher.
Remember, interrogatories attempt to find as much information
as possible, from the generic background information to specific
questions about the matter being litigated.
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The litigation process is an adversarial process. There
are polite considerations that should be implemented
for the benefit of all. One of these is to leave enough
space between interrogatories for the opposing party to
respond.
Limited Discovery
Many states now have what is referred to as limited
discovery. This means one of two things. Either only
specific questions may be posed, or the number of
questions is limited. In California, for instance, discovery
has evolved to the point where discovery forms, with
specific questions for specific legal matters, are used
instead of law office created materials.
Many states limit interrogatories to 40 questions per
party, unless the court grants additional questions. Many
courts even count subsections listed as a, b, c, etc., as
individual interrogatories.
Continuing Nature of Discovery
If a party becomes aware of an answer to a discovery
request after the request was made and responded to,
that information must be provided. For example, if a
previously unidentified witness becomes known to the
responding party, that party is still responsible for making
this information known to the party issuing discovery.
Discussion Points
1.
At what point are interrogatories usually
sent?
2.
To whom are interrogatories generally sent?
The opposing party, witnesses, or both?
3.
Are instructions required?
4.
What are the advantages to including
instructions?
5
Are interrogatories responded to under oath?
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§
6.13 ANSWERS TO INTERROGATORIES
When interrogatories are received by the law firm, the date
they are received should be stamped on the document and
a note should be made of the due date for response in the
appropriate calendar or tickler system. There are three ways
the firm may have the client respond to the interrogatories.
1. The attorney responds.
This is the most inefficient means of response.
It should only be used in cases involving very
technical or complex matters, such as extremely
confusing contract cases. Otherwise, the client
is simply stuck with a service at attorney rates
that could have been provided at paralegal rates.
2. The client responds by him or herself.
This could certainly be appropriate and
cost effective. Ultimately, the complexity of
the litigation, or the client’s experience with
the litigation process, may be the determining
factor. If this is the chosen method of response,
remember to provide the client with a date by
which the responses should be returned to the
attorney. This date should be well in advance
of the actual due date, since revisions may be
required.
3. The client responds with help.
Once the interrogatories have been received,
the client should be notified and
an
appointment made to consult with the
paralegal in order to respond. This is the most
intelligent method of responding to discovery,
and may ultimately be the most cost-effective.
If a paralegal assists the client in responding,
the time an attorney must spend reviewing,
correcting, and rewriting will be negligible, since
the paralegal has had that responsibility all
along.
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Discovery Point
Make sure the client understands that
interrogatories are responded to under oath.
When assisting a client in responding to discovery, always
maintain your client’s, and your own, ethical standards.
First, and foremost, ethical standards should be high
because once started down the slippery slope of unethical
behavior, it is difficult to regain the ethical higher ground.
The paralegal should also consider the fact that answers
to interrogatories, or any other form of discovery, may be
entered into evidence, or read at trial. Since the person
responding must respond to the interrogatories under
oath, any discrepancy between testimony given at trial
and discovery responses could place the client, and/or
his or her attorney, in jeopardy.
Unfortunately, discovery has been used by many attorneys
as a means of intimidation or obstruction. Some questions
may be posed simply to upset, embarrass, or scare the
opposing party. Other questions may ask for responses
or materials of such a quantity that the responding party
is overwhelmed.
When this occurs, a litigant’s attorney generally has two
choices. The attorney may wish to object to an
interrogatory based on its lack of relevance,
inappropriateness, creation of a burden to the responding
party, or for other reasons. Or, if the amount of material
requested is considerable, or the information sought is
not readily available, the attorney may wish to ask the
court for an enlargement of time in order to respond. Of
course, the attorneys may agree between themselves
to allow additional time to respond. As a paralegal, you
can support your attorney by documenting any agreement
reached between attorneys.
Discussion Points
1.
What is the advantage in having a paralegal assist
the client in answering interrogatories?
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2.
What ethically challenging situations could arise
when helping a client respond to
interrogatories?
3.
Which of the following are not under oath?
a.
b.
c.
d.
§
interrogatory responses
affidavits
verified complaints
all of the above are under oath
6.14 INTERROGATORY TECHNIQUES
First and foremost, when creating any discovery document,
use any form books and templates that the firm might
have. However, there will be times when no previously
existing form quite fits the matter being litigated, or the
form you find needs substantial alteration. These
techniques are designed to give the paralegal a framework
for creating your discovery documents.
Technique One:
Personal Information. Build a profile of the opposing party.
EXAMPLE:
1.
2.
3.
Provide your full name, address, home and
work phone number, and Social Security
number.
Provide the names of all those involved
in responding to these interrogatories.
Provide a general statement as to your
position in this action.
Technique Two:
Financial Considerations. Establish the ability of the
opposing Party to pay damages which may result from
the litigation. Look for assets in three areas:
a.
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Assets of the Party (property, Certificates
of Deposits, etc.)
Essential Skills for Paralegals: Volume II
b.
c.
Assets which the Party has an interest in
(wills, insurance beneficiaries, etc.)
Assets the party has no direct interest in,
but which may be relevant to litigation
(spouse’s property, insurance directly
covering damages, business liability, etc.)
Example:
14. Are you a beneficiary to any insurance
policies? If yes, provide the following:
a.
b.
c.
d.
Name of Policy Holder
Name of insurance company
Policy number
Your relationship to Policy Holder
Technique Three:
Facts pertaining to the case. Ask detailed questions
regarding the matter which is before the court. (Who?
What? When? Where? Why?)
Example:
23. What was your response when you first saw
the Plaintiff, your wife’s lover, on the corner?
24. How did the Plaintiff react when he saw you?
25. In what manner did the Plaintiff approach you?
26. When the Plaintiff first started to approach you,
what was your reaction?
27. What occurred when the Plaintiff offered to
shake your hand?
Discovery Point
Avoid asking “yes or no” questions unless a followup question is included. If you use a follow-up
question,
you
are
probably
wasting
interrogatories.
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§ 6.15 INTERROGATORY EXAMPLE
Attorney Name
Address
Phone
Bar Number
DISTRICT COURT
STATE OF CONFUSION
PAUL and PAM SMITH,
Plaintiffs,
v.
INTERROGATORIES
JACK DOE,
Defendant.
TO:
(OPPOSING PARTY’S NAME)
TO:
(OPPOSING COUNSEL)
Under the authority of Rule 33 of the State of Confusion Rules of Civil Procedure, Defendant, by
and through its attorneys, request that Plaintiffs answer, in writing and under oath, within 30 days of receipt
hereof, the interrogatories hereinafter set forth.
DEFINITIONS
1.
“COMPLAINT” shall mean and refer to Plaintiffs’ complaint originally filed on 2-25-04 in
Department XVII of the Clark County District Court, Case No. 5076.
2.
“PROPERTY” shall mean and refer to the real property owned by Defendant. “YOU”,
“YOUR”, “YOURS”, and/or “PLAINTIFF” shall mean and refer to both plaintiffs as well as their agents,
attorneys, employees, accountants, family members, investigators, or any other person acting on their behalf.
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3.
“DOCUMENT” refers to any piece of paper or evidence, including, but not limited to,
letters, correspondence, contracts, proposals, subcontracts, invoices, memoranda, notes, drawings, reports,
photographs, microfilm, videotapes, and/or computer input documentation.
INTERROGATORIES
INTERROGATORY NO. 1:
Describe all items YOU contend constitute DEFECTS or deficiencies on the roof at the PROPERTY.
INTERROGATORY NO. 2:
Identify all DOCUMENTS which evidence alleged DEFECTS or deficiencies at the PROPERTY.
INTERROGATORY NO. 3:
Please state all facts upon which YOU base any claim for breach of contract against .
INTERROGATORY NO. 4:
Please identify all DOCUMENTS upon which YOU rely in claiming that has breached its contract
with respect to the roof at the PROPERTY.
INTERROGATORY NO. 5:
State all facts in support of YOUR contention in the COMPLAINT that owed a duty to YOU.
INTERROGATORY NO. 6:
State all facts in support of YOUR contention in YOUR COMPLAINT that breached its duty
owed to YOU.
INTERROGATORY NO. 7:
Identify with specificity all locations where damages are claimed to have occurred.
INTERROGATORY NO. 8:
Identity all damages claimed to be the result of the alleged wrongful conduct of DEFENDANT.
INTERROGATORY NO. 9:
For each injury identified in response to Interrogatory No. 9, please identify the total cost of the
medical services.
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INTERROGATORY NO. 10:
Did YOU ever make any written report or complaint to this propounding party regarding alleged
injuries?
INTERROGATORY NO. 11:
If YOUR response to the preceding Interrogatory was the affirmative, please identify with particularity
to allow the requesting party to inspect all such documents.
INTERROGATORY NO 12:
Identify each injury or damage YOU attribute to the actions or inactions of Defendant.
DATED this ____ day of May, 2004.
____________________________
Attorneys for Defendant,
CERTIFICATE OF MAILING
I hereby certify that on this ______ day of May 2004, I placed a true and correct copy of the
foregoing INTERROGATORIES in the United States Mail, postage prepaid, addressed to counsel on the
attached service list:
___________________________________
An employee of
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§ 6.16 REQUEST FOR ADMISSIONS
Requests for Admissions are a powerful discovery device
which forces an opposing party to commit to a position
or set of facts. Because of this, requests can be more
powerful than any other form of discovery at exposing
the strategy, strengths, and weaknesses of the opposing
party.
As the name of this discovery device implies, either party
may request that the other party admit or deny certain
specific facts that the admitting party will not be able to
contest at trial. This also assists the attorney because
any facts admitted in the requests do not have to be
established at trial.
Requests for Admissions have historically had two
functions. First, to basically take “testimony” regarding
specific facts at trial to avoid lengthy examination of the
opposing party. Since it was possible to ascertain the
other party’s position as to the alleged facts in a case,
much of the examination would be unnecessary, having
already received his or her admissions (or denials),
basically determining what matters will be stipulated
prior to trial.
Secondly, admissions are utilized strategically to force
the other party to declare his or her position as to certain
facts. Imagine the advantage one party could have if the
opposing party were asked to admit to damaging
information. Assuming the information was true, the
opposing party would be forced to choose between two
unpleasant possibilities: telling the truth, and admitting
the matter, or lying, thereby committing perjury.
Many states now limit the amount of requests that may
be propounded to the other party. This makes it
imperative that each request be relevant.
Requests for Admissions may also be used to authenticate
exhibits intended for use at trial.
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Requests for Admissions may be the most unappreciated
discovery device. Consider the fact that with this tool, a
party can literally state, “Admit you did it” to the other
party, and they must answer under oath. When properly
constructed, Requests for Admissions become a powerful
discovery tool.
Discussion Points
1.
What form do the Requests take? Questions,
statements, or both?
2.
Can the requests be sent to any witness?
3.
Are the Requests responded to under oath?
4.
Under what circumstances may the
responding party refuse to respond?
5.
What may happen if a Request is not responded
to in time?
§ 6.16 RESPONDING TO REQUESTS
As soon as the Requests for Admissions are received,
they should be date-stamped, placed in the client file,
and noted in the appropriate calendar or tickler system,
noting the response date.
Responding in a timely manner is especially critical for
Requests for Admissions, because if a request is not
specifically admitted or denied within the required time
frame, usually thirty days, the request can be deemed
admitted by the requesting party.
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Discovery Point
Some states require that a responding party
admit in part and deny in part Requests for
Admissions that are only partially accurate.
However, such a request is generally easy to
deny.
While the rule is that every request for admissions
must be answered, there are several potential options.
They include:
•
•
•
•
•
Admitted
Denied
Neither admitted nor denied due to lack
of sufficient information with which to
respond at this time
A specific reason must be provided for the
refusal to respond.
Neither admitted nor denied due to
vagueness of the Request
Omit a specific request when responding
The attorney may choose not to respond to a
particularly troublesome request, but the
request may be deemed admitted by the
requesting party.
The final two options above may be accompanied
by an objection file with the court as to the
appropriateness of the request by the responding
party. Any request not responded to would also
most likely instigate a motion to compel by the
requesting party, asking the court to require a
response.
When responding, don’t offer additional information.
Just admit or deny each request.
Discovery Point
A Request for Admission can not be answered
by simply admitting or denying it. However, it
may be possible to object to the request based
on vagueness or inappropriateness.
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Many beginning paralegals find it disturbing that a
defendant, or plaintiff, may be forced to respond to
such potentially damaging inquiries. What about the
5th Amendment? Well, the 5th Amendment doesn’t
apply in all cases.
Remember that the 5th Amendment applies only in
criminal matters, not civil. There is, however, at least
one circumstance that may arise in civil litigation that
may necessitate the application of the 5th Amendment.
What happens when, by responding to a request for
admission, the client would tend to incriminate him or
herself in a criminal act? Does he or she have to
respond to that specific request while in civil litigation?
The answer is generally no. If a client is in potential
jeopardy of being charged with a criminal offense by
answering the request, or if the current matter being
litigated also involves criminal conduct, the individual
at risk cannot be forced to provide testimony, or in
this case admissions, against him or herself.
When answering, the attorney should sign the
response. In addition, a verification (by the person
responding) as to the truth of the response should be
attached. Of course, a certificate of mailing should
accompany the response.
Discussion Points
1.
Which of the following is a valid Request for
Admission?
a.
b.
c.
134
Admit or Deny that you abandoned your
child.
Were you at your child’s last birthday
party?
Who did you spend last Christmas with?
Essential Skills for Paralegals: Volume II
2.
Can the requesting party pose a statement
he or she knows will potentially elicit a
response which could incriminate the other
party in a criminal act? Why or why not?
3.
Why did O.J. Simpson have to answer discovery
requests in his civil litigation?
§ 6.18 REQUEST FOR ADMISSIONS
TECHNIQUES
First and foremost, use form books to create Requests
for Admissions. However, there will be times when no
form quite fits the matter being litigated, or the form you
find needs substantial alteration. These techniques are
designed to give the paralegal a framework for authoring
Requests for Admissions.
Technique One:
Verify or corroborate Interrogatories.
Review each Interrogatory. Can you rephrase any of the
Interrogatories into statements? When you get the
answers to each form of discovery back, look for
discrepancies.
EXAMPLE:
1.
2.
Admit or deny that you have been an employee
of the U.S. Postal Service for eight (8) years.
Admit or deny that you were on duty at 1:30
PM, July 4, 2004.
Technique Two:
Give choices, or degrees of liability.
The goal is to provide the other party enough “rope to
hang himself.” When given a choice, the answering party
may wind up choosing the “lesser of evils,” even when
doing so admits some degree of liability.
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EXAMPLE:
11.
12.
13.
Admit or deny your response to seeing
your wife’s lover was prudent and reasonable.
Admit or deny your response to seeing your
wife’s lover was a somewhat violent
overreaction.
Admit or deny your response to seeing your
wife’s lover was criminal in its violent intent.
Technique Three:
Force the party to commit.
On points of judgment, or when a party is being evasive,
present a series of statements in such a way that the
party will eventually have to commit.
EXAMPLE:
23.
24.
25.
26.
136
Admit or deny that you had at least
one drink during your lunch hour on the
day in question.
Admit or deny that you had at least
two drinks during your lunch hour on
the day in question.
Admit or deny that you had at least
three drinks during your lunch hour on
the day in question.
Admit or deny that you had at least
four drinks during your lunch hour on
the day in question.
Essential Skills for Paralegals: Volume II
§ 6.19 REQUEST FOR ADMISSIONS EXAMPLE
Attorney Name
Address, Phone
Bar Number
DISTRICT COURT
STATE OF CONFUSION
JOHN and SALLY SMITH,
Plaintiffs,
v.
REQUEST FOR ADMISSIONS
JACK DOE,
Defendants.
TO:
(OPPOSING PARTY’S NAME)
TO:
(OPPOSING COUNSEL)
YOU ARE requested to admit or deny the statements contained herein and serve your responses upon
PLAINTIFF within thirty days of receipt of these requests pursuant to court rules.
DEFINITIONS
1.
“COMPLAINT” shall mean and refer to Plaintiffs’ complaint originally filed on 7-04-03 in
Department XVII of the Clark County District Court, Case No. 1756.
2.
“PROPERTY” shall mean and refer to the real property owned by Defendant. “YOU”, “YOUR”,
“YOURS”, and/or “PLAINTIFF” shall mean and refer to both plaintiffs as well as their agents, attorneys,
employees, accountants, family members, investigators, or any other person acting on their behalf.
3.
“DOCUMENT” refers to any tangible piece of paper or evidence, including, but not limited to,
letters, correspondence, contracts, proposals, subcontracts, invoices, memoranda, notes, drawings, reports,
photographs, microfilm, videotapes, and/or computer input documentation.
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REQUEST FOR ADMISSIONS
1.
Admit or deny YOU were employed as a taxi driver on July 4, 2003.
2.
Admit or deny Plaintiffs were passengers in YOUR taxi.
3.
Admit or deny YOUR taxi collided with another vehicle at the intersection of
Sahara Blvd. and Paradise Rd. in the State of Confusion.
4.
Admit or deny YOU were negligent in your operation of YOUR taxi during or immediately
preceding the event in question.
5.
Admit or deny plaintiffs were passengers in YOUR taxi during the aforementioned
collision.
DATED this ____ day of May 2004.
____________________________
Attorney for Defendant
CERTIFICATE OF MAILING
I hereby certify that on this
day of May 2004, I placed a true and correct copy of the
foregoing REQUEST FOR ADMISSIONS in the U.S. Mail, postage prepaid, addressed to counsel on
the attached list:
_____________________________________________
Judy Ross, Paralegal
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§ 6.20 REQUEST FOR PRODUCTION
Requests for Production and Inspection usually involves
documents, but may also be utilized to inspect and
take photographs of such things as cars, houses, boats
and the like.
As we will discuss later, it is imperative that the
paralegal be able to distinguish between discoverable
and non-discoverable material. The good news is that
there are only two kinds of documents that are not
discoverable. The bad news is that they are not always
easy to identify.
§ 6.21 DISCOVERABLE MATERIALS
Any materials relevant to the litigation requested by
the opposing party that do not violate the Fifth
Amendment rights of the responding party or any other
privilege or rule are discoverable.
§ 6.22 NON-DISCOVERABLE MATERIALS
Attorney work-product.
Materials developed in anticipation of litigation
by or for the attorney are not generally
discoverable. For instance, a report produced by
order of the client to bring the representing
attorney up to date as to the financial stability
of the client would be considered work product.
Privileged Information.
Privileged information, such as records from a
doctor or hospital, private communication with a
spouse, or contact with a spiritual advisor, would
not be discoverable unless the privilege has been
waived. The most common way to waive a
privilege is for the information to be made “nonprivate” by the fault of the person who owns the
privilege.
Attorney/Client Privilege.
Private communications between the client and
his or her attorney are considered privileged
communications and, as a result, are not
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discoverable. Of course, this also applies to
paralegals and other staff working for the
attorney on behalf of clients. However, the
communication must include the following
elements:
1.
2.
3.
The communication must be private
It must remain private
The communication must fall within the
scope of the paralegal’s duties.
In addition to the attorney-client privilege, there are
other privileges which affect the discoverability of
certain documents. This includes communication
between the doctor and patient, communication
between a member of the clergy and a penitent, and
other relevant privileges.
A paralegal is often called upon to either prepare
materials for inspection by the opposing party, or is
required to inspect the materials other parties have
provided. When preparing documents, follow these
rules:
1. Withhold any documents involving communication
between the client and the attorney. (Includes
other staff and/or paralegals.)
2.
Withhold any documents that were prepared to
assist the attorney in arguing his or her case. Note
that any document, even if privileged or work
product, becomes discoverable if the attorney
decides to introduce that document as evidence.
There are numerous documents, photographs, reports,
and other materials that may be obtained through
discovery. The Requests for Production are the
mechanism by which such materials are obtained. This
mechanism does not require leave of court or a
subpoena. Samples of materials, which should be
considered when creating Requests for Production,
include:
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·
·
·
·
·
·
photographs
designs or drawings
contracts
corporate records
income tax records
company reports
Discovery Point
If you have to think twice about whether to produce
a document, ask the attorney. Once produced,
information can’t be taken back, even if it was
produced by accident.
Some attorneys utilize a subpoena duces tecum in much
the same manner as requests for production. A subpoena
duces tecum demands the appearance of an individual at a
specific time and place, and demands that he or she bring
specific documents with him or her. Typically, a subpoena
duces tecum is used for a witness who is not a party to the
action. There are generally no rules which prohibit the
subpoena duces tecum from being issued in the same
manner upon an opposing party. At worst, the party may
choose to challenge the validity of the information sought.
§ 6.23 RESPONDING TO PRODUCTION
As with other discovery documents, when requests for
production are received, they need to be date stamped and
the response date noted in the appropriate calendars and
tickler systems.
Discovery Point
View discovery requests as an investigation tool.
Try to view them as the beginning of the
investigation, not the end result. With that in mind,
take the responses and ask yourself not only what
information they provide, but whether they open
any new doors which may need to be investigated.
Paralegals sometimes are asked to either help prepare
documents which have been requested, or review documents
which have been provided by another party in response to
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requests. These tasks are not often mentioned
among the most important duties of a paralegal.
Make no mistakes in this regard: Preparing and
reviewing such documents is one of the most critical
tasks a paralegal will ever engage in.
When preparing documents in response to discovery,
the paralegal needs to communicate with the client
regarding which specific materials the requests are
asking for. When the paralegal receives the
documents from the client, he or she should make
sure the documents are complete and that they
accurately respond to the requests. Before they are
produced to the other side, the paralegal must
determine whether any of the documents are
privileged or part of the work product.
Any such documents should be withdrawn from the
materials being produced. However, the requesting
party must be made aware that a document that
was requested exists, but that it is not being
produced. The requesting party must also be
provided with a reason for the nonproduction.
For instance, here is an example of a common
request:
21.
Produce any and all documents that
evaluate compliance by the defendant
with the terms of the July 16, 2001
contract which is in dispute in this
litigation.
When reviewing the documents provided by the
client, the paralegal discovers that one of the
documents is a letter from the client to her attorney.
This document would not be considered discoverable,
but the existence of the letter must be disclosed to
the opposing party. Some attorneys feel that simply
disclosing the fact that some privileged material is
being withheld is sufficient notice. Other attorneys
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might believe it more appropriate to be specific. In the
response to the request for production, the following might
be a typical manner in which to deal with the matter:
1.
The defendant hereby responds to
plaintiff’s request for production and
encloses all relevant documents and
information requested, with the
following exceptions:
2.
The following documents are privileged
by means of the attorney-client privilege,
and therefore are not discoverable:
a.
August 3, 2001 letter from
defendant Carl James to his
attorney Judith Faye re: July
16, 2001 contract.
The requesting party may argue that since the letter
precedes litigation, it is not privileged. This would
normally be a weak argument. If the document is deemed
critical enough, the requesting party can file a motion to
compel discovery, and the court, after reviewing the
document privately, will determine whether it is
privileged or not. The same kind of response would be
provided for work product documents as well:
3.
The following documents are privileged by
means of the attorney-client privilege, and
therefore are not discoverable:
a.
Notes from August 13 meeting with
paralegal.
Discovery Point
When inspecting large amounts of produced
material, take short, frequent breaks to maintain
an alert mind. Remember to utilize one discovery
document to verify or corroborate other discovery
documents. Compare responses for discrepancies.
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These considerations regarding work product and
privileged documents require even more attentiveness
when vast amounts of materials are involved. If a
paralegal must review 5 or 6 boxes of materials, even
one out of one thousand documents which negligently
falls into the hands of the opposing party could constitute
malpractice.
Likewise, when a paralegal is asked to inspect hundreds
or even thousands of documents, he or she must
thoroughly review each document with the attitude that
one of them might win the case. If large quantities of
materials must be reviewed, it is not uncommon for the
paralegal to be sent to the opposing firm, or even the
opposing party’s place of business, to go through boxes
or files and choose which should be copied. (Of course,
the opposing party has already sanitized these boxes
and files.) Two principles should guide you:
1. Be thorough to the point of obsession.
2. When in doubt, copy.
First, do not allow the opposing party or attorney to
intimidate or hurry you while you are inspecting the
documents. Ask for a private, or at least semiprivate,
area to do your work. If you need additional time to
review documents, politely inform the other party and
make arrangements to return. Do not sacrifice accuracy
and thoroughness due to time constraints imposed by
the opposing party. Second, if the paralegal has to
think twice about whether a document should be copied,
he or she should copy the document. It is much better
to obtain too much information than too little.
Lastly, make sure to keep an accurate and exact copy of
the documents that were provided to the requesting
party. This way, many months from now when the trial
is about to begin, the attorney will have no doubts
about what the opposing party has or does not have.
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Discovery Point
The paralegal should not “out-think” him or herself.
Sometimes it’s difficult when drafting discovery
documents not to think “The other side would never
provide that,” or “If I were them, I’d never answer
that question,” and as a result, leave out that
discovery request. Don’t do the other side’s work for
them!
Discussion Points
1.
Are there other methods of obtaining
documents.
2.
Which of the following documents
would paralegal not be allowed to
list in a Request for Production?
(Assuming they are relevant.)
Contracts
Insurance documents
Private letters
Potential exhibits
Business photographs
Receipts
Tax returns
Agenda from attorney/client
meeting
Adoption records
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§ 6.24 DEPOSITIONS
Depositions are oral questions posed to a witness
(sometimes a party) under oath. In most cases, they are
conducted in an attorney’s office, with both attorneys
present. A court reporter will transcribe the testimony
verbatim. The testimony is just as valid and binding as
though it had been delivered in court. Since it is given
under oath, to lie in a deposition is to commit perjury.
Discovery Point
Depositions are the most powerful method of
discovery. One of the primary purposes of other
forms of discovery is to lay the groundwork for
depositions, which lays the groundwork for
examination at trial.
A paralegal cannot ask questions during a deposition. He
or she may attend, may make suggestions to the attorney,
and may even offer to the attorney possible questions
that should be asked of the witness. Even though
paralegal may be intimately involved in the deposition
process before and after the actual testimony, the
paralegal cannot conduct the deposition. It is the attorney
who must actually ask the questions. For the paralegal
to do so would constitute unauthorized practice of law.
Duties of a paralegal prior to a deposition include
deposition preparation and follow-up.
§ 6.25 PREPARING FOR THE DEPOSITION
1. Setting the deposition
2. Deposition notice and subpoenas
3. Preparing questions for the deposition
When setting a deposition, it is generally done by
agreement between the parties as to time and place.
The paralegal may need to coordinate between the
schedules of his or her own attorney, the individual to be
deposed, and the opposing counsel. Be polite and to the
point when consulting with the secretary or attorney for
the other side. It may be the responsibility of the paralegal
to calendar the scheduled date of the deposition. Either
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the paralegal or the secretary should send a follow-up
letter to the opposing counsel confirming the date, time,
and place of the deposition. If the person being deposed
is your client, a letter should be sent to him or her.
When coordinating the time and place of the deposition
with the opposing party, it should be made clear which
party is arranging for the court reporter. Usually, the
party initiating the deposition becomes responsible for
the hiring and compensation of the court reporter.
The paralegal should ask the attorney or other paralegals
whether there are any specific reporters usually utilized
by the firm. If not, use the yellow pages. If the deposition
is not at the law office, the party initiating the deposition
must make arrangements and pay for appropriate
accommodations. The room must be of adequate size to
accommodate the attorneys, paralegals, witness, and
court reporter. Consider having such things as coffee,
ice, and water.
Discovery Point
Paralegals cannot ask questions of the witness
at a deposition. They can, however, attend and
take notes, make suggestions to the attorney,
and generally assist in the deposition process.
The notice of deposition should be sent well in advance
of the deposition and filed with the court. In addition, it
is good practice to subpoena the witness who is to be
deposed, even if the witness has agreed to appear. This
also applies to witnesses to be called to the witness
stand during the trial. The court will usually allow an
absent witness to be called at a later date only if the
attorney can establish that the witness was subpoenaed.
A subpoena duces tecum should be issued if the witness
is being asked to present documents at the deposition.
A paralegal can help the attorney in preparing for the
deposition by drafting a set of potential questions to be
asked at the deposition.
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To draft questions, use the following:
1.
2.
3.
4.
The Pleadings
Discovery Documents and Responses
Previous Depositions and Discovery
Research Sources
1. The Pleadings
If a paralegal is to be involved in the deposition
process, it is imperative that the paralegal be
thoroughly familiar with the case. While
reviewing the client file, take note of any
potential information, or lack thereof, which could
be clarified during the questioning of the witness.
The pleadings, especially the complaint, answer,
and counterclaim, should be studied for potential
aspects of interrogation.
2. Discovery Documents and Responses
Why spend time creating questions and
strategies if those questions and strategies
already exist in the current litigation? Much of
the information being sought has been
requested in the various discovery documents.
Pay particular attention to interrogatories and
requests for admissions and their responses.
3. Previous Depositions and Discovery
Law firms also have a source of information that
is often under-utilized. Case files from previous
clients often have documents, including
deposition questions and discovery documents,
which should be researched and developed for
current use.
4. Research Sources
The law library also contains sources for
questions and strategies. Am. Jur. Pleading and
Practice Forms and Am. Jur. Proof of Facts are
excellent sources of information in developing
deposition questions.
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Discovery Point
When a paralegal drafts questions for the
attorney to use at the deposition, she or he
should not take it personally if the attorney makes
significant changes to the list. The paralegal
eliminates the time consuming step of the first
draft that the attorney would have to create for
him or herself if the paralegal was not available.
§ 6.26 DEPOSITION FOLLOW-UP
The court reporter will generally provide the deposing
party with either a copy of the transcript, a computer
disk containing the transcript, or both. The original
transcript should be sent to the witness who was
deposed. The deponent will then be required to read
the transcript, make any necessary changes or
corrections, and sign the transcript before a notary public.
All parties involved should receive copies of the transcript
with changes and corrections by the witness. Note that
the witness may change any of his or her testimony at
this point without penalty of perjury. For lengthy
deposition transcripts, there are two mechanisms that
will help the attorney and paralegal access the document
with greater ease. These are the deposition index, and
the deposition summary, also referred to as a deposition
digest.
The deposition index simply provides an alphabetical
listing, A through Z, of subject matter contained within
the transcript and the pages on which those subject
matters appear. The good news for the paralegal is
that the job of creating a deposition index has largely
become a matter of software. In fact, in most cases
the index will be provided along with the transcript by
the court reporter.
Discovery Point
A Deposition Index is usually created by software
and provided by the transcriber. A Deposition
Summary, or Digest, needs to impart the heart
of the deposition.
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A deposition summary is a reduced, or digested,
version of a deposition transcript. There are three
goals when summarizing a transcript:
1. Relate relevant material
2. Don’t alter the context of the material
3. Avoid editorializing in the summary
1. Relate relevant material
When deciding what information to impart to
the attorney within the summary, ask yourself
whether a specific piece of information is part
of the overall picture of the litigation. Is it
something that might affect an attorney’s
decision on a specific matter? If yes, it is
probably relevant and the paralegal should
include the information in his or her summary.
2. Don’t alter the context of the material
If a witness states “We killed them,” that sounds
like an admission to murder. But what if the
question was “How did your football team play
against the Raiders?” Obviously, the answer
was taken out of context. While this is an
exaggerated example, the paralegal should
impart the spirit of the question (as well as the
response of the witness) within the summary.
3. Avoid editorializing in the summary
It is difficult not to develop opinions and
prejudices (either for or against) regarding a
witness who has been deposed. But the
paralegal needs to maintain a neutral attitude
when reading the deposition and summarizing
the material. Otherwise, an inaccurate
reflection of the transcript may be imparted.
One more hint. Don’t restate the question in the
summary. Only restate the information obtained from
the response to the question.
There are two ways to summarize a transcript.
1.
2.
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Topical Summary
Page-by-Page Summary
Essential Skills for Paralegals: Volume II
A topical summary excerpts a portion of the transcript
that deals with one specific topic and summarizes that
material. The portion being summarized may be just a
couple of lines, or several pages.
page 6, line 5-26
Deponent (Mr. Jones) only
remembers shopping, getting in the
passenger seat of the car prior to
the accident and waking up in great
pain in the hospital after the crash.
page 6, line 27page 7, line 8
Mr. Jones says his wife was not on
any medication at the time of the
accident, even though she had
received a prescription that week
for back pain.
A page-by-page summary simply digests each page
individually. For example:
page 6
Mr. and Mrs. Jones went shopping at
Yuckie’s Supermarket. Deponent (Mr. Jones)
had a headache, asked wife to drive. While
Deponent does not remember the accident
itself, he does remember shopping, getting
in the passenger seat prior to the accident,
and after the crash waking up in great pain in
the hospital. Deponent says his wife was not
on medication.
page 7
Mrs. Jones had received a prescription
the week of the accident for back pain. To
his knowledge, deponent was involved in one
previous automobile accident. It occurred in
1991 or 1992. Mrs. Jones was driving a
friend’s car in Washington DC and was hit
by a bus in a tunnel. She was not ticketed
and the bus driver was found to be at fault.
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Discovery Point
Accuracy is not an option in summarizing
depositions. It is a necessity.
Whichever form of deposition summarizing a
paralegal chooses, the goal is always consistent:
provide the attorney with a more manageable means
of accessing the deposition transcript without losing
relevant information.
Assignment
1.
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Using the following deposition excerpt,
summarize the deposition.
Essential Skills for Paralegals: Volume II
§ 6.27 DEPOSITION TRANSCRIPT
DEPOSITION TRANSCRIPT
1
2
3
4
5
The pretrial deposition of HAROLD MOORE, taken at the request of the
Plaintiff, for the purposes of discovery, pursuant to the Rules of Civil
Procedure, by agreement of the parties on the 21st day of January, 2001, at
the law office of Sue M. Daily, Litigationville, USA, before Ty Pittout,
Registered Court Reporter and Notary Public.
6
HAROLD MOORE
7
8
Called as a witness for the Plaintiff, having been first duly sworn, was
examined and deposed as follows:
9
10
EXAMINATION
BY MS. DAILY:
11
12
Q.
Please state your name, home phone number, and address.
13
A.
My name is Harold Moore. My phone number is 555-3553. My
14
address is 44 5th St., Las Vegas, Nevada.
15
16
Q.
upset with you?
17
18
When did you first have an indication that your neighbors were
A.
19
I don’t know. I guess it began when that little girl’s rabbit
disappeared.
20
21
22
Q.
When was that?
A.
Oh, about a year ago. I mean, they didn’t really know what
23
happened to it, but the girl, I think her name was Cosette; she
24
drew this drawing of her bunny and passed them around the
25
26
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1
neighborhood. It was really kind of pathetic, you know? But I
2
didn’t have any clue.
3
4
5
Q.
Did anyone suspect anything at that point?
A.
I didn’t. I don’t think any of the neighbors did either, even after
Princess turned up missing. Of course nobody really cared too
6
7
much about that, since Princess was the cat. I think it was
8
viewed more as a community service.
9
10
Q.
11
12
So you didn’t…you wouldn’t say there was cause to be concerned
at this point then?
A.
Upset? Why? Just a rodent and a stupid cat at that point.
Q.
Well then, you still haven’t said when the neighbors were upset,
13
14
or started to suspect what was going on.
15
16
A.
17
Well, about a month after Princess disappeared, this Cocker
Spaniel puppy got loose from his yard. John Forest called me up
18
19
and asked if I had seen the mutt. I hadn’t. Then he started
20
asking about Sebastion. So I guess that was when it started.
21
Q.
What kind of questions did Mr. Forest ask?
A.
Like where was he. Did he have any lumps? Stuff like that.
24
Q.
Was the conversation friendly?
25
A.
At first, but his little girl was crying in the background, something
22
23
26
like, “I want my Fluffy, I want my Fluffy.” I could hardly hear
27
28
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Forest. So, he started getting upset as the conversation went on
Essential Skills for Paralegals: Volume II
1
and finally said that if anything happened, he’d put my face
2
through a plate glass window. So, I guess you could say that was
3
the point where someone got a bit upset.
4
5
Q.
I’d say that was a pretty good indication.
6
A.
Uh-huh.
7
Q.
Why did he want to know about lumps?
A.
Well, there’s a lump for about a week. They don’t like being
8
9
touched during that period either. Nasty as…
10
11
Q.
12
So that was when the neighbors first suspected. But what about
you? You still had no idea?
13
A.
No. Not till the two lumps. That was the first.
15
Q.
Two lumps?
16
A.
Yea. Just about the same time the Turner twins were
14
17
missing. I had noticed the two lumps earlier in the day.
18
Then I read in the paper about the twins not returning
19
20
home from school and I thought to myself, “Hey, those kids
21
cut through by backyard all the time. I wonder what…”
22
Then I remembered the lumps.
23
24
Q.
What did you do?
25
A.
What did I do? What a stupid question. I gave him an Alka-
26
27
Seltzer! What could I do? Look down his throat? For all I knew,
he just ate a couple of wild pigs or something.
28
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1
2
Q.
Are there wild pigs in your neighborhood?
3
A.
No, of course not.
Q.
Is there anything in your neighborhood that could have made
4
5
those size lumps, other than the Turner twins?
6
7
A.
I don’t know. I can’t think of anything.
8
Q.
Has it occurred to you that keeping a boa constrictor as a pet to
9
an elementary school was not the wisest of choices?
10
11
A.
Yeah, but I couldn’t but the place next to the animal hospital.
12
Q.
Why would you want to be located there?
A.
Because when it was dinner time, I could have asked Sebastion,
13
14
15
“One lump, or two?”
16
17
18
19
20
21
22
23
24
25
26
27
28
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Essential Skills for Paralegals: Volume II
§ 6.28 EXAMPLE OF DEPOSITION DIGEST
A deposition digest, which is also called a deposition
summary, is very simple in form. Below is a simple example
of the layout of a deposition summary. The Rules of
Summarizing Depositions are:
1. Relate relevant material
2. Don’t alter the context of the material
3. Avoid editorializing in the summary
Remember, accuracy is not an option in summarizing
depositions. It is a necessity.
Deposition Summary
of
Teri Phillips
Testimony taken October 31, 2003
Page 1
Deponent provided personal information and was
introduced to all those present. She was then
administered the oath.
Page 2 - Page 4
Deponent described the hours leading up to her visit to
Acme Department Store. She had lunch immediately
before going to the store, but had no alcohol, and was
not on any medication.
Page 5
When Deponent entered the store, she stopped by the
information booth to ask directions. She proceeded to
the second and third floors, browsing for coats. After
approximately twenty-five minutes, she saw a sign for
the ladies’ room.
Page 6
Deponent claims that when she stepped toward the
restroom area, there were no signs or warnings indicating
that the floor had been recently mopped or had in any
way been effected. There was also no indication that
the owner or any employee had been informed of the
hazard.
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Essential Skills for Paralegals: Volume II
V O L U M E II
part 3
Traditional Research & Writing Techniques
A Needle in a Haystack
When the researcher walks into a law library, the goal
is not to be a “crusader” for the client. The objective
is to find the law, good or bad, that applies to the
client’s case. If the researcher becomes a “crusader,”
she or he runs the risk of overlooking relevant
authority. Sometimes there will be too much authority,
sometimes too little. In fact, sometimes there may
be only one or two cases that address the relevant
issue in the entire library.
To put this into perspective, the average law library
contains more than seven million cases. It may seem
that finding a case on point is akin to winning the
lottery, or finding a needle in a haystack.
In fact, many publishers have created books and
research systems to attempt to make the researcher’s
job easier. Among these publishers are West, Lawyer’s
Cooperative, Bureau of National Affairs (BNA),
Commerce Clearing House (CCH), Michie, and American
Law Institute (ALI).
The competition between these publishers has
resulted in an interesting phenomenon. Every new
system, every innovation, has been designed with
the goal of making the researcher’s job easier so
attorneys will buy the books (which are not cheap).
The result has been that the research systems have
become so user-friendly that they can be used by not
only attorneys, but anyone who has been trained in
the system.
The success of this Segment will rely in great part
upon the student’s ability to learn the roles of the
books they have studied and to be able to “wade-in”
to the various materials. Students must also utilize
the skills, such as cartwheeling and index research,
which have been taught earlier in this manual.
Part 3 Chapters:
7. Authority: Law Books
8. Traditional Research Tools
9. Notices, Motions & Briefs
ASSIGNMENTS
Library Scavenger Hunt:
§ 8.4
Due Date:
/
/
Law Library: A.L.R.
§ 8.5
Due Date:
/
/
Law Library: Digests
§ 8.6
Due Date:
/
/
Law Library: Shepard’s
§ 8.8
Due Date:
/
/
Federal Case Research
§ 8.10
Due Date:
/
/
Federal Statutes
§ 8.14
Due Date:
/
/
State Research
§ 8.15
Due Date:
/
/
Motion, Notice & Brief
§ 9.8
Due Date:
/
/
Other Assignment
§ ___.___
Due Date:
/
/
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159C
What is the difference between a taxidermist and a tax collector? The
taxidermist takes only your skin.
Mark Twain
Of course, there are more kinds of law than cases in
the law library. There are statutes, court rules, the
U.S. Constitution, regulations, and many other
examples. But the skills developed within this Segment
will be transferable to researching almost any kind of
law.
PART SIX OBJECTIVES:
Legal Research Skills
Paralegals must understand proper law library
utilization, how to locate primary authority, how
to use secondary sources, how to update research
sources, and how to utilize specific legal
materials, including American Law Reports,
American Jurisprudence, 2d, Corpus Juris
Secundum, West Digests, Words & Phrases, Am.
Jur. Proof of Facts, form books, treatise research,
legal periodicals, Shepard’s, and state and federal
statutory research. Students will also be trained
in the use of the two most important legal
research systems, The Key Number System by
West Publishing Company and the Total Client
Service Library by Lawyer’s Cooperative Publishing
Company.
Law Library Materials
Paralegals need to have a familiarity with law
library materials.
Motions and Briefs
A paralegal needs to be familiar with some of
the most common motions, and be able to
prepare a motion when asked, as well as a brief
in support of the motion.
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Essential Skills for Paralegals: Volume II
4
chapter 7
Authority: Law Books
§ 7.1
THE FUNCTIONS OF LAW BOOKS
The law library contains many different kinds of books.
Not all contain the law. Some exist to help the
researcher locate the law. Some exist to help the
researcher use the law after it’s been found. They all
serve a specific purpose. Almost all law library books
fall into one of the following categories.
4
Books that help you find the law
Many secondary sources, such as the legal
encyclopedias, American Law Reports, and West
Digests exist primarily to assist the researcher
in finding the law.
Books that contain the law
In other words, books that contain primary
authority. Reports and reporters contain cases.
Codes contain statutes. The library contains
regulations, court rules, the Constitution, and
other books that contain the law.
Books that help to use the law
Form books, such as Am.Jur. Proof of Facts,
Am.Jur. Pleading and Practice Forms, and
Bender’s Discovery Forms, help the researcher
create legal documents. Other form books help
in trial strategy, such as Am.Jur. Trials, or Am.Jur.
Proof of Facts.
While there are also general reference materials, such
as Martindale-Hubbell Law Directory, the vast majority
of law library books fall into one of the above
categories. The materials on the following pages will
make more sense to you if you ask yourself, as you
look at each book or set of books, “What purpose
does this book serve?”
The law books presented in this chapter are broken
down into two groups: Those books containing
Secondary and Non-authority, and those books
containing Primary Authority. While some books may
contain a mixture of authority, each book is grouped
according to the predominant function of the book.
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§
7.2 LAW BOOKS CONTAINING
SECONDARY & NON-AUTHORITY
There are several million cases in a fully stocked law
library. There are statutes from fifty states, the federal
government, and even many foreign countries. There
are hundreds, or even thousands, of treatises and
periodicals. There are annotations, digests,
administrative regulations, session laws, form books,
and countless other materials. It is, at first,
overwhelming, to say the least.
When the researcher understands some basic research
techniques and systems, all of these materials come
within the grasp of the paralegal. Before the systems
can be taught, however, the student must learn to
identify the law books and materials within the law
library. So study this part very thoroughly. It may
wind up defining your career as a researcher.
After reading each description, determine what
purpose the book serves, and check off the appropriate
box or boxes. Some may serve more than one function.
American Law Reports (A.L.R.)
The A.L.R. Series is an annotated reporter.
•
•
it is a reporter because it reports (reprints)
cases from courts.
it is annotated because its editors
discuss, or comment, on those cases.
A.L.R. reprints important or interesting cases, then
comments on those cases providing additional
research tools and references. There are several series
of A.L.R.:
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Essential Skills for Paralegals: Volume II
There can be no equal justice where the kind of trial a man get depends on the
amount of money he has.
Hugo L. Black
•
•
•
•
•
•
A.L.R.
A.L.R.
A.L.R.
A.L.R.
A.L.R.
A.L.R.
2d
3d
4th
5th
Fed.
A.L.R. (first series), A.L.R. 2d, and A.L.R. 3d annotate
both state and federal cases. A.L.R. 4th and A.L.R.
5th annotate only state cases, while A.L.R. Fed.,
obviously, publishes federal cases. A.L.R. is published
by the Lawyer’s Cooperative Publishing Company, and
therefore uses the Total Client Service Library research
system.
Although A.L.R. contains selected cases, which are
primary authority, it is considered secondary authority
because it is primarily valued for its annotations.
A.L.R.:
Helps to find the law
Contains selected cases
Helps to use the law
Acts as a reference or other
American Jurisprudence, 2d (Am. Jur. 2d)
The national legal encyclopedia by Lawyer’s
Cooperative Publishing Company (now published by
West Group). Since it was designed by Lawyer’s Coop.,
it is part of the Total Client Service Library.
Each topic is commented upon, and within the
commentary, small raised numbers appear, referring
to footnotes. The footnotes, in turn, refer to other
forms of authority, usually cases and statutes. The
primary purpose of Am. Jur. 2d is to lead to primary
authority. Am. Jur. 2d is secondary authority.
Part Three: Traditional Research and Writing Techniques
163C
We have an insanity plea that would have saved Cain.
Mark Twain
American Jurisprudence, 2d:
Helps to find the law
Contains the law
Helps to use the law
Acts as a reference or other
Annotation
A commentary or discussion by a private publisher.
Would be considered secondary authority. A.L.R. is
best known for its annotations. In fact, when a lawyer
asks a paralegal to find an “annotation” on something,
she or he is referring to A.L.R.
Annotations:
Helps to find the law
Contains the law
Helps to use the law
Acts as a reference or other
Bluebook
The phrase “Bluebook” can mean three different things:
164
•
When you say “Bluebook” to lawyers,
they think you are referring to the
Uniform System of Citation, which is a
guide to citation form.
•
The A.L.R. Blue Book of Supplemental
Decisions updates the first series of A.L.R.
•
The National Reporter Blue Book is a
means of updating cases that
has been largely replaced by Shepard’s.
Essential Skills for Paralegals: Volume II
The perfect judge fears nothing-he could go front to front before God, Before
the perfect judge all shall stand back-life and death shall stand back-heaven and
hell shall stand back.
Walt Whitman
The Uniform System of Citation:
Helps to find the law
Contains the law
Helps to use the law
Acts as a reference or other
citations
A citation is an address to legal material. The most
popular form of citation is the Bluebook Uniform
System of Citation (see Bluebook). Since more than
one publication may reprint the very same opinion, a
cite may have multiple citations, known as parallel
cites.
Citations:
Help to find the law
Contain the law
Help to use the law
Act as a reference or other
Corpus Juris Secundum (C.J.S.)
C.J.S. is the national legal encyclopedia published by
West Publishing Company. As with all legal
encyclopedias, the material is arranged topically. Each
topic is commented upon, and within the commentary,
small raised numbers appear, referring to footnotes.
The footnotes, in turn, refer to other forms of
authority, usually cases and statutes. The primary
purpose of C.J.S. is to lead to primary authority. C.J.S.
is considered secondary authority.
Corpus Juris Secundum:
Helps to find the law
Contains the law
Helps to use the law
Acts as a reference or other
Part Three: Traditional Research and Writing Techniques
165C
Judges commonly are elderly men, and are more likely to hate at sight any
analysis to which they not accustomed, and which disturbs repose of mind,
than to fall in love with novelties.
Oliver Wendell Holmes, Jr
Cumulative Supplement
A collection of material that contains previously printed
material and new or updated material. Most often comes
in the form of a soft bound supplement, or pocket part.
(See pocket parts)
A cumulative supplement:
Helps to find the law
Contains the law
Helps to use the law
It depends on what is
being
supplemented
Current Law Index (CLI)
The CLI is one of the most popular methods of finding
articles in the hundreds of legal periodicals. CLI may be
accessed in a very similar fashion to library card
catalogues. In other words, the researcher may locate
material by author, title of article, or subject matter.
Since an index would never be quoted, C.L.I. would be
considered non-authority.
The Current Law Index:
Helps to find the law
Contains the law
Helps to use the law
Acts as a reference or other
Digests
A digest is a collection of summaries, similar to
headnotes, collected in topical order. They act as an
index to case law. The primary publisher of digests is
West. For instance, the Pacific Reporter has the Pacific
Digest. Colorado has the Colorado Digest. The Federal
Reporter and Federal Supplement have the Federal
Practice Digest. The Supreme Court Reporter has the
Supreme Court Digest. In addition, West publishes the
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Essential Skills for Paralegals: Volume II
Judge, a person who is always interfering in disputes in which he has no
personal interest.
Ambrose Bierce
American Digest System. There are basically three parts
to the American Digest System:
The Century Digest
This digest summarizes cases from the
1600s to 1896. Very old authority.
The Decennial Digest
This digest collects material from all digests,
state and federal, over ten year periods.
Because it contains so much material, it can
be very useful. More recent editions have
been forced to split the Decennial into
five year segments. For instance, the Tenth
Decennial Digest, Part One and Part Two.
The General Digest
The Decennial Digest does not have pocket
parts, but since there are at least five
years between Decennials, they need to be
updated. The General Digest updates the
Decennials.
The research system West incorporates in its digests is
the Key Number System (See Key Number System).
Digests do not comment on legal topics, and are not law,
so they are non-authority.
Digests:
Help to find the law
Contain the law
Help to use the law
Act as a reference or other
Form book
A manual or aid to a researcher that helps prepare
documents, trial strategy, or educate the researcher as
to a specific area of law. Form books are secondary
authority.
Part Three: Traditional Research and Writing Techniques
167C
Jurisdiction exists that rights may be maintained. Rights are not maintained
that jurisdiction may exist.
Benjamin N. Cardozo
Form books:
Helps to find the law
Contains the law
Helps to use the law
Acts as a reference or other
Index to Legal Periodicals (ILP)
ILP, as with the Current Law Index listed above, assists
the researcher in locating relevant articles in legal journals
and magazines. ILP may be accessed in a very similar
fashion to library card catalogues. In other words, the
researcher may locate material by author, title of article,
or subject matter. Since an index is never quoted, ILP
would be considered non-authority.
The Index to Legal Periodicals:
Helps to find the law
Contains the law
Helps to use the law
Acts as a reference or other
Key Number System
The research system West incorporates in its digests is
the Key Number System. Thousands of topics and
subtopics have been assigned their own Key Topic and
Key Numbers. Similar to a topic and section number in an
encyclopedia, the Key Topic and Key Number match up in
any digest published by West. For instance, assume the
researcher locates Adoption, Key Number 52 in the
Pacific Digest, and that this Key Topic and Number deals
with “Adoption of child by relative.” If the researcher wants,
she or he could take the same Key Topic and Number to
any other West digest, such as the Atlantic Digest, and
the topic there would also be “Adoption of child by relative.”
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Essential Skills for Paralegals: Volume II
A jury too frequently have at least one member, more ready to hang the panel
than to hang the traitor.
Abraham Lincoln
The Key Number System:
Helps to find the law
Contains the law
Helps to use the law
Acts as a reference or other
Legal dictionary
The three major standard legal dictionaries are:
Ballentine’s
Black’s
Barron’s
In addition, Words & Phrases, which has over a
hundred volumes, is also a legal dictionary. It provides
actual quotes from court opinions defining legal terms.
Legal dictionaries are considered secondary authority.
Legal Dictionaries:
Help to find the law
Contain the law
Help to use the law
Act as a reference or other
Legal encyclopedia
A multi-volume set of books containing a little
information about virtually all areas of law. Provides
references to other research sources in the footnotes.
Am. Jur. 2d and C.J.S. are the major legal
encyclopedias. Some states have their own
encyclopedias, such as California Jurisprudence, 2d.
Encyclopedias are considered secondary authority.
Part Three: Traditional Research and Writing Techniques
169C
(On the sentencing of criminal defendants:) Here I am an old man in a long
nightgown making muffled noises at people who may be no worse than I am.
Learned Hand
A Legal Encyclopedia:
Helps to find the law
Contains the law
Helps to use the law
Acts as a reference or other
Legal periodicals
A soft bound publication, such as a law school journal
or bar association journal, that is published weekly,
monthly, bimonthly, or issued at some other regular
interval.
Legal Periodicals:
Help to find the law
Contain the law
Help to use the law
Act as a reference or other
Legal treatise
A book authored by a private individual about a specific
area of law. While a legal encyclopedia provides a
little information about every area of law, a treatise
provides a great deal of information about a single
area of law. The most influential legal treatise is
Restatements of Law by American Law Institute. As
one judge stated, they are as close as you can get to
the law without being the law. There are literally
thousands of different treatises. Each library chooses
which to purchase or subscribe to. Treatises are
secondary authority.
A legal treatise:
Helps to find the law
Contains the law
Helps to use the law
Acts as a reference or other
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Essential Skills for Paralegals: Volume II
The halls of Justice. That’s the only place you see the justice, is in the halls.
Lenny Bruce.
Loose-leaf Service
A manner in which legal materials are collected in a 3ring or post binder, usually sent out periodically,
instead of a bound volume. A loose-leaf may be
primary or secondary, depending on what it contains.
A Loose Leaf Service:
Helps to find the law
Contains the law
Helps to use the law
Acts as a reference or other
Martindale-Hubbell Law Directory
A reference book regarding lawyers and law. The three
functions of Martindale-Hubbell are:
1. State by state listing of attorneys.
2. Separate volume of digested state laws.
3. Separate volume of digested foreign laws.
The major function of Martindale-Hubbell is to provide
information about the attorneys who have subscribed
and are listed. Even though there are volumes
containing digested state and foreign laws, these
volumes do not contain the law itself. The online
address
for
Matindale-Hubbell
is:
www.martindale.com
Martindale-Hubbell:
Helps to find the law
Contains the law
Helps to use the law
Acts as a reference or other
Pocket part
The pamphlet found in the back of many law books
that alters or updates material in the bound volume.
It is one form of a supplement. This way the volume
Part Three: Traditional Research and Writing Techniques
171C
Prohibition only drives drunkenness behind doors.
Mark Twain
may be updated instead of being replaced. Often takes
the form of a cumulative supplement.
A pocket part:
Helps to find the law
Contains the law
Helps to use the law
Depends on what is being supplemented
Restatements of Law
Restatements are the most highly respected legal
treatise. There are various series of Restatements,
such as Restatements (Second) of Contracts or
Restatement of Property Law. Even though
Restatements are highly valued, since they are
published by the American Law Institute, a private
publisher, and are not law, they are considered
secondary authority, but are frequently cited by courts.
Restatements:
Help to find the law
Contain the law
Help to use the law
Act as a reference or other
Shepard’s
Shepard’s is the major mechanism to ensure that a
published case is still good law.
Shepard’s has three major functions:
It validates authority.
It provides parallel citations.
It helps locate additional relevant cases
being researched.
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Essential Skills for Paralegals: Volume II
The manner in which Shepard’s is utilized will be
discussed in greater detail later in this chapter.
Shepard’s would never be quoted, and is therefore
non-authority.
Shepard’s:
Helps to find the law
Contains the law
Helps to use the law
Acts as a reference or other
Total Client Service Library
The research system originally designed by Lawyer’s
Cooperative Publishing Company. Leads researchers
to other relevant legal material.
The Total Client Service Library:
Helps to find the law
Contains the law
Helps to use the law
Acts as a reference or other
United States Law Week (U.S.L.W.)
U.S.L.W. is a loose-leaf publication that reports all
U.S. Supreme Court opinions. Since it is in loose-leaf
form, the cases are sent out much more quickly than
hard bound publications.
United States Law Week:
Helps to find the law
Contains the law
Helps to use the law
Acts as a reference or other
Part Three: Traditional Research and Writing Techniques
173C
Words & Phrases
A multi-volume legal dictionary by West Publishing. This
dictionary is different from most, in that it uses
quotations from actual court opinions to define terms.
Thus, it is an excellent source to locate primary
authority.
Words & Phrases:
Helps to find the law
Contains the law
Helps to use the law
Acts as a reference or other
§
7.3 LAW BOOKS CONTAINING
PRIMARY AUTHORITY
Advance Sheets
This soft bound pamphlet is published in advance of
the hard bound publication so the reader will have quick
access to it. Usually associated with reports and
reporters. When the hard bound book comes out, the
advance sheet is discarded.
Advance Sheets:
Help to find the law
Contain the law
Help to use the law
Act as a reference or other
cases
A case is a published court opinion. West is the major
reporter of case law, although there are a few
exceptions. The Reporter Series is the means by which
West Publishing Company publishes cases from different
regions of the country, in addition to the federal cases
found in the Federal Reporter (1st, 2d, and 3d series),
the Federal Supplement (1st and 2d series), and the
Supreme Court Reporter. Other publications
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Essential Skills for Paralegals: Volume II
containing federal cases include the Federal Rules
Decisions, the Federal Appendix, and subject matter
reporters, such as the Bankruptcy Reporter and the
Military Justice Reporter.
Lawyer’s Cooperative Publishing Company also publishes
cases, but only the U.S. Supreme Court Reports,
Lawyer’s Edition (1st and 2d series). All of the above
mentioned publications are unofficial publications,
because they are published by private publishers instead
of the government. Many states also publish their own
publications containing opinions from the courts within
those states. For example, the Washington Reports
are published by the state of Washington, and are,
therefore, an official publication. Some states have a
separate publication for the appellate court opinions
within their state. For instance, Michigan has the
Michigan Reports for cases from its highest court, and
the Michigan Appellate Reports from the Michigan Court
of Appeals. Cases are law, and are therefore primary
authority.
Books that publish cases:
Help to find the law
Contain the law
Help to use the law
Act as a reference or other
Code of Federal Regulations
The C.F.R. is simply the collection of soft bound pamphlets
containing regulations for federal agencies. They are
law, and hence are primary authority.
C.F.R.:
Helps to find the law
Contains the law
Helps to use the law
Acts as a reference or other
Part Three: Traditional Research and Writing Techniques
175C
Federal Register
The Federal Register reports daily summaries of
administrative agencies, including proposed laws and
actions taken by those agencies.
The Federal Register:
Helps to find the law
Contains the law
Helps to use the law
Acts as a reference or other
Headnote
A headnote is a summary at the beginning of an opinion
that encapsulates a portion of the opinion. Found at
the beginning of cases in unofficial reporters, and a few
official reports. Headnotes may not be quoted, and are
therefore, non-authority.
Headnotes:
Helps to find the law
Contains the law
Helps to use the law
Acts as a reference or other
Lexis
One of the major computerized legal research systems.
Query formulation is the key to successful computerized
research.
Lexis:
Helps to find the law
Contains the law
Helps to use the law
Acts as a reference or other
176
Essential Skills for Paralegals: Volume II
Official Authority v. Unofficial Authority
If a publication is published by the government, state
or federal, or if a series is published under the authority
of the government, it is official. If a publication is
published by a private publisher, it is unofficial. The
reasons to be able to tell the differences are:
a.
In case citations, the official publication is
always cited first.
b. Two major private (unofficial) publishers have
created the two most powerful research
systems: West’s Key Number System and the
Total Client Service Library by Lawyer’s
Cooperative Publishing. Official publications
do not use either of these research systems.
Rules of Court
The law that governs the procedural aspects of litigation
or criminal trials. Court rules are law, therefore primary
authority.
Court Rules:
Help to find the law
Contain the law
Help to use the law
Act as a reference or other
Session Laws (Statutes at Large)
When a legislature passes acts or bills, those acts and
bills are collected in a hard bound set of books called
Session Laws, or Statutes at Large, or some other
similar term. Since most legislatures meet every year,
each year has its own set of Session Laws for that
year. The acts or bills will also be incorporated within
the regular set of statutes for that state, which means
that the researcher rarely needs to use Session Laws.
Since they contain laws, they are considered primary
authority.
Part Three: Traditional Research and Writing Techniques
177C
Session Laws:
Help to find the law
Contain the law
Help to use the law
Act as a reference or other
Slip laws
A sheet or pamphlet where a statute is first printed
before it can be incorporated into the statutes. Since
they are laws, they are primary authority.
Slip laws:
Help to find the law
Contain the law
Help to use the law
Act as a reference or other
Slip opinions
A sheet or pamphlet where a case is first printed before
it can be incorporated into a report or reporter.
Slip Opinions:
Help to find the law
Contain the law
Help to use the law
Act as a reference or other
Statutory code
State or federal statutes printed in multi-volume sets,
such as the Nevada Revised Statutes, the United States
Code, or the Colorado Revised Statutes. Statutes are
primary authority.
Statutes:
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Essential Skills for Paralegals: Volume II
Help to find the law
Contain the law
Help to use the law
Act as a reference or other
United States Code, United States Code
Annotated, and United States Code Service
The federal statutes, which are published in three
publications: U.S.C. (official government publication),
U.S.C.A. (West), and U.S.C.S. (Lawyer’s Coop.) Even
though only U.S.C. is official, all three publications
contain primary authority. However, always cite to the
official U.S.C.
The United States Code:
Helps to find the law
Contains the law
Helps to use the law
Acts as a reference or other
United States Law Week (U.S.L.W.)
U.S.L.W. is a loose-leaf publication that reports all U.S.
Supreme Court opinions. Since it is in loose-leaf form,
the cases are sent out much more quickly than hard
bound publications.
United States Law Week:
Helps to find the law
Contains the law
Helps to use the law
Acts as a reference or other
Westlaw
Part Three: Traditional Research and Writing Techniques
179C
West Publishing’s computerized legal research system.
Query formulation is the key to successful computerized
legal research.
Westlaw:
Helps to find the law
Contains the law
Helps to use the law
Acts as a reference or other
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Essential Skills for Paralegals: Volume II
chapter 8
Traditional Research Tools
§
8.1 WHERE SHOULD YOU BEGIN?
The Research Flowchart on the following page is designed
to help students visualize the path a research project
may take. There are multiple points at which to begin
a research project, including the following:
-State or Federal statutes
-American Law Reports
-Am.Jur.2d
-C.J.S.
-West Digests
§
8.2 EXPANDING YOUR RESEARCH
Once led to a case, the researcher should take
advantage of the tools provided within the opinion to
broaden the scope of his or her research. Of course, the
researcher should locate the case in the unofficial
reporter whenever possible. This is because the official
publication generally contains only the opinion with
limited notes, while the unofficial reporter provides the
opinion, as well as additional research tools. Within
the opinion, utilize the following tools:
Headnotes
Use the headnotes to quickly access the most
relevant portions of the opinion. While the entire
opinion should be read eventually, the headnotes
allow the researcher to quickly determine whether
the case is relevant.
Key Numbers
Each headnote will be assigned a Key Topic and
Number. Identify the relevant headnotes, then
access one of West’s Digests with that Key Number.
This is a fantastic research technique.
The Opinion
Use cases, statutes, and other authorities cited
within the opinion.
The paralegal should also Shepardize a case. Shepard’s
will provide citations to opinions that have cited the
case. The cited cases may relate to your subject matter.
Assignments
Students will use their research assignments to
perform the following
exercises. Students
should start in various
exercises, but all exercises must be completed. Those exercises
include:
Scavenger Hunt
A.L.R.
West Digests
Shepard’s
Federal Case Law
Federal Statutes
State Statutes
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181C
§
8.3 LEGAL RESEARCH FLOW CHART
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Essential Skills for Paralegals: Volume II
§
8.4 INTERACTIVE STUDY: SCAVENGER HUNT
Locate the following in the law library:
A.L.R. SERIES
Index to A.L.R. 2d, 3d, 4th, 5th, and Fed. (One set of books.)
A.L.R.
A.L.R. 2d
A.L.R. 3d
A.L.R. 4th
A.L.R. 5th
A.L.R. Fed.
An annotation within one of the series
The case associated with the annotation you find
Supplements (pocket parts) in one of the books
Total Client Service Library (found in the annotation)
DIGESTS
Index
Main Volumes
Supplement
REPORTERS
Pacific Reporter
South Western Reporter
Southern Reporter
South Eastern Reporter
North Western Reporter
Atlantic Reporter
North Eastern Reporter
STATE STATUTES
Index
Main Volumes
Supplement
FEDERAL STATUTES
Index
Main Volumes
Supplement
SHEPARD’S VOLUMES
Main Volumes
Advance Sheets (Supplements)
Hard Bound Supplements
Part Three: Traditional Research and Writing Techniques
183C
§
8.5 INTERACTIVE STUDY:
AMERICAN LAW REPORTS
A.L.R. publishes selected cases, but is valued
most for the annotations of those cases.
American Law Reports (A.L.R.) is an annotated report.
An annotation is a discussion or commentary. A.L.R.
“reports” (or publishes) selected cases of unique or
important matters. When Lawyer’s Cooperative chooses
to publish a case in A.L.R., the case will be fully reprinted
in A.L.R. and then commented upon, in other words,
annotated. Note that we can still find the case in its
original reporter (such as the Pacific Reporter). But only
in A.L.R. will we find this detailed annotation. Even though
A.L.R. contains selected primary authority (cases), A.L.R.
is valued mostly for its annotations. In addition, since
annotations are secondary authority, we consider A.L.R.
secondary authority. There are multiple series of A.L.R..
A standard set of A.L.R. will include A.L.R., A.L.R. 2d,
A.L.R. 3d, A.L.R. 4th A.L.R. 5th, and A.L.R. Federal. The
major differences between the various series are how
each series is updated. Therefore, the materials in A.L.R.
(1st), obviously are much older than the cases in A.L.R.
4th or A.L.R. 5th. A.L.R. (1st), A.L.R. 2d, and A.L.R. 3d
contain both state and federal cases. A.L.R. 4th and 5th
contain only state cases. After A.L.R. 3d, federal cases
are reported and annotated in A.L.R. Federal.
The Index
Always begin your research in the broadest index.
You might notice when researching that there are several
indexes for A.L.R. in some libraries. Orange ones, red
ones, black ones. Many of these indexes are specific to
an individual series, or they are abbreviated desktop
indexes. So, it is helpful to use the broadest index
available when initiating research. The broadest A.L.R.
index (the index that you are going to look for) simply
says A.L.R. Index.
This multi-volume index has the same sort of khakigreen color as the main volumes and is usually found at
184
Essential Skills for Paralegals: Volume II
Ignorance of the law is no excuse in any country. If it were, the laws would
lose their effect, because it can always be pretended.
Thomas Jefferson
the end of the most recent set of A.L.R.’s. The index will
lead you to annotations within A.L.R. 2d, A.L.R. 3d, A.L.R.
4th, A.L.R. 5th, and A.L.R. Federal. The goal of the index
is to lead the researcher to the main volumes.
Since A.L.R. is arranged chronologically, not topically, the
researcher is led to a specific volume, series, and page
number. For example: 14 A.L.R. 4th 481.
Each index will have a supplement in the back of the
book, often referred to as a pocket part. This supplement
should be researched since it updates and adds to materials
within the main volume.
ASSIGNMENT A
Using the A.L.R. Index for A.L.R. 2d-5th and Federal,
answer these questions.
1.
How many volumes make up the
A.L.R. Index?
2.
Is your research topic covered in the
index?
3.
The A.L.R. Index leads to which of the
following?
a.
b.
c.
volume number, series, page number
a topic and section number
a topic and key number
4.
Does the index have a supplement?
If yes, where is it located?
5.
Is your topic covered in the supplement?
6.
Provide any cites to the A.L.R. main
volumes the index may have provided.
Part Three: Traditional Research and Writing Techniques
185C
The law will never make men free; it is men who have got to make the law free.
Henry David Thoreau
The Main Volumes
The index leads the researcher to the annotation
within the main volumes.
The A.L.R. Index leads the researcher to a specific
annotation within the main volumes. Lawyer’s
Cooperative provides several tools to help the
researcher utilize the annotation. These include:
Total Client Service Library
Table of Contents
Annotation Index
Table of Jurisdictions Represented
Total Client Service Library
Lawyer’s Cooperative provides a list of books to the
researcher, usually contained within a box, which helps
the researcher broaden the scope of his or her research.
This tool is called the Total Client Service Library.
This list contains references to other books by Lawyer’s
Cooperative Publishing Company that deal with the
same topic. Many books may be listed, including Am.
Jur. 2d, Federal Procedural Forms, Am.Jur. Pleading
and Practice Forms, Proof of Facts, and many others.
These are other places you can then go to research
the same topic.
Table of Contents
The Table of Contents breaks down the annotation
into various points discussed. One of the most helpful
aspects of A.L.R. is that it will discuss multiple sides
of a legal argument. It provides contrary authority.
For instance, A.L.R. may provide instances where courts
have held that a husband who forces his wife to have
sex has committed a sexual assault, as well as
authority which holds the contrary view. The Table of
Contents leads the researcher to a specific point in
the annotation (For instance: §4b). This means that
the researcher should find section 4b within that
specific annotation.
186
Essential Skills for Paralegals: Volume II
If we desire respect for the law we must first make the law respectable.
Louis D. Brandeis
Annotation Index
At the beginning of many annotations (but not every
annotation) the researcher will find an Index. This
index is for the annotation. It helps to access relevant
portions of the annotation. Again, the researcher is
typically led to a section number within the annotation.
Table of Jurisdictions Represented
Another tool is the Table of Jurisdictions Represented.
Your state may or may not be represented, but if it is,
you may find authority within your jurisdiction. If
your state is mentioned, that means that those section
numbers following your state contain references to
authority from your jurisdiction. The actual annotation
generally follows the Table of Jurisdictions. It should
also be noted that A.L.R. 5th , and the supplement for
A.L.R. 4th, provide new or revised research tools. We
will see these at a later point.
ASSIGNMENT B
Locate the volume, series, and page which the
index provided, and answer these questions.
1.
In which series of A.L.R. are you working?
2.
Did the index lead you to the annotation
or the case upon which the annotation is
based?
case
annotation
3.
Is the case printed before or after the
annotation?
before
after
4.
Provide at least two additional research
sources from the Total Client Service
Library (TCSL).
5.
Does the annotation have a Table of
Contents?
yes
no
Part Three: Traditional Research and Writing Techniques
187C
A prosecuting attorney’s success depends very largely upon his ferocity. American practice
permits him an extravagance of attack that would land him in jail, and perhaps even in a
lunatic asylum, in any other country, and the more passionately he indulges in it the more
certain becomes his promotion to higher office, including the judiciary.
H. L. Mencken, Noies on Democracy 169 (1926)
6.
Does your annotation have an Index?
yes
no
7.
Locate the Table of Jurisdictions
Represented. Which of the following
states has authority cited within the
annotation?
a.
Nevada
b.
California
c.
New York
d.
Colorado
The Supplements
Supplements update the material within the
main volume. But the first two series are
updated differently than the other series.
Remember, the purpose of A.L.R. is to lead the
researcher to primary authority, such as a case or
statute. However, before locating the primary authority
A.L.R. has cited, we must make sure that the material
researched is up to date.
In A.L.R. 3d, A.L.R. 4th , A.L.R. 5th , and A.L.R. Federal,
the researcher must find updates to the material in
the hard bound volume by turning to the pocket part
in the back of the volume, generally labeled as
Supplement on the front of the pamphlet. Within the
supplement, the researcher turns to the same page
number that was being researched in the main volume.
For instance, if the cite in the main volume the
researcher was looking up was 83 A.L.R. 4th 685,
the researcher should find the corresponding cite in
the supplement (83 A.L.R. 4th 685-727). The
researcher will then be informed whether any recent
cases have altered or updated the material or the
issue being researched. In fact, A.L.R. will lead to
specific section numbers.
Now pull out a volume of A.L.R. 4th.
Turn to the
supplement and find any update to the material in
the main volume. Immediately following the volume,
188
Essential Skills for Paralegals: Volume II
I consider advocacy, jurisprudence, even justice, to have no more intrinsic
importance than, say, oyster-shucking.
John Barth
series, and page number (i.e., 72 A.L.R. 4th 231-298),
A.L.R. provides two relatively new Research
Reference tools. The first new tool is a suggested
Electronic Search Query. This is very helpful not
only for computer searches, but also assists the
researcher in cartwheeling for new topics. The second
new tool is a collection of relevant West Digest Key
Numbers. This enables the researcher to directly
access the various digests by West Publishing, thus
broadening the scope of his or her research.
While most series of A.L.R. are updated by pocket
parts, A.L.R. (first series) and A.L.R. 2d are
supplemented by hard bound series. A.L.R. (first
series) does not have pocket parts. Yet the researcher
must still be provided with a mechanism for ensuring
that material in the main volume is up to date. The
A.L.R. Blue Book of Supplemental Decisions acts
as a hard bound supplement to A.L.R. (first series).
The volume, series, and page number of the main
volume has a corresponding update in the A.L.R. Blue
Book. Also, note that the A.L.R. Blue Book itself has
pocket parts. (That’s right! Even the supplement has
a supplement!)
Similarly, A.L.R. 2d has no pocket parts. It is updated,
again, with a hard bound supplement titled the A.L.R.
2d Later Case Service.
ASSIGNMENT C
Locate the volume, series, and page which the
index provided, and answer these questions.
1.
Was your annotation updated in the
pocket part?
yes
no
2.
How many volumes of the A.L.R.
Blue Book of Supplementary Decisions
does your library contain?
3.
Does the A.L.R. 2d Later Case Service
have supplements?
yes
no
Part Three: Traditional Research and Writing Techniques
189C
I consider advocacy, jurisprudence, even justice, to have no more intrinsic
importance than, say, oyster-shucking.
John Barth
The A.L.R. Digest
The A.L.R. Digest is another way to topically
access the A.L.R. Series.
The purpose of the A.L.R. Index is to lead the
researcher to relevant material within the main
volumes. But what if the researcher is unable to find
anything onpoint in the index? Are there any other
ways to access A.L.R.?
The answer is the A.L.R. Digest. It is another manner
in which to access A.L.R. topically. Instead of looking
up a topic in the index, the researcher can go straight
to the topic being researched within the A.L.R. Digest.
The A.L.R. Digest may lead the researcher to a volume,
series, and page number within the main volumes, or
it may even refer him/her directly to a case in L. Ed.
2d. Note that this digest is different from the West
Digests. As we will see later, the West Digests are
accessed by using the Key Number System. A.L.R.
refers to the Key Number System in its newer editions,
but it does not actually use the system.
ASSIGNMENT D
Locate the most recent A.L.R. Digest in your
law library and answer these questions.
1.
What series does the digest cover?
2.
Did you find any relevant material in the
A.L.R. Digest?
yes
no
A.L.R 5th
A.L.R. 5th updates some research tools as well
as providing two important new research aides.
The researcher should be aware that there are some
significant changes in A.L.R. 5th. Locate any volume
of A.L.R. 5th and open the book to the beginning of
any annotation. First of all, A.L.R. 5th simply looks
190
Essential Skills for Paralegals: Volume II
A lawyer without books would be like a workman without tools.
Thomas Jefferson
different. The first page of every annotation is a full page.
It states the general topic of the annotation and provides
a paragraph that discusses that topic. One of the major
structural changes from previous A.L.R. series is the manner
in which the case being annotated is reported. While
previous A.L.R. series printed the case immediately prior
to the annotation, A.L.R. 5th provides cases in the back of
each volume.
The researcher may also notice that the Table of Contents
is much more thorough. A.L.R. 5th also improves its Total
Client Service Library references and the annotation Index.
One of the largest improvements of previously existing
services in A.L.R. 5 th is the Table of Jurisdictions
Represented. A.L.R. 5th provides many more cases and
statutes than previous series. The chance of a specific
state or jurisdiction being represented is much greater.
One helpful new feature in A.L.R. 5th is the Electronic
Search Query. This query is actually based on a search
query for Lexis, but it would certainly be helpful for creating
a query for Westlaw as well. More importantly for the
paralegal, this query provides the major legal terms that
could be used in researching your topic. In other words, it
does the cartwheeling for you!
A.L.R. now provides relevant West Digest Key Numbers.
WestGroup now owns A.L.R. As we will see later, the Key
Number System that is used in West digests is a powerful
research system. It is very easy to use. From now on,
A.L.R. 5th, and the pocket parts in A.L.R. 4th, will give you
key topics and numbers that the researcher may utilize to
access West Digests.
As previously mentioned, the Electronic Search Query and
West Digest Key Numbers are also provided in the
supplements to A.L.R. 4th. Some libraries also provide a
separate soft bound volume which does nothing but provide
the Electronic Search Query and West Digest Key Numbers
for A.L.R. 4th and A.L.R. 5th annotations. If a volume of
A.L.R. 4th or 5th is already updated with a supplement, the
researcher does not need to turn to this soft bound volume.
Part Three: Traditional Research and Writing Techniques
191C
There are not enough jails, not enough policemen, not enough courts to enforce
a law not supported by the people.
Hubert H. Humphrey
ASSIGNMENT E
Locate any volume of A.L.R. 5th) open to any
annotation, and answer these questions.
1.
The full cite of the volume you picked is:
2.
Does A.L.R. 5th update its volumes?
yes
no
If yes, how?
192
3.
Look at the first page of the annotation.
Now find the case upon which the
annotation is based. Where is the case
located? In other words, does it appear
before or after the annotation, or
somewhere else in the volume?
4.
Does the annotation include the Total
Client Service Library?
yes
no
5.
Does the annotation include a Table of
Contents?
yes
no
6.
Does the annotation include an Index?
yes
no
7.
Provide at least 4 terms from the
Electronic Search Query.
1.
2.
3.
4.
Essential Skills for Paralegals: Volume II
Are you going to hang him anyhow-and try him afterward?
Mark Twain
8.
Provide at least 3 West Digest Key
Numbers.
1.
2.
3.
Final note regarding publisher of A.L.R.
Just to make things a bit more difficult, students should
be aware that there has been a change in the publisher
of A.L.R. Around 1998, Lawyer’s Cooperative Publishing
Company was sold to the newly formed (you guessed
it), WestGroup Publishing Company. WestGroup itself
has since been obtained by Thomson Publishing. Don’t
let that concern you. For research purposes all that
matters is that WestGroup publishes A.L.R., Am.Jur.2d,
and other publications under the Lawyer’s Coop.
subsidiary. In addition, WestGroup still publishes
Digests under it’s West Publishing subsidiary. The
acquisition explains the new intermingling of research
systems, and as a researcher, you can most likely
expect even more integration of these important
research tools. Also, WestGroup has been acquired
by Thomson Publishing.
However, for your research purposes, it is still helpful
to understand the various research systems, and the
publishers that created those systems.
Legal Junk Food
The United States Attorney is the representative not of an ordinary party to a
controversy, but of a sovereignty whose obligation to govern impartially is as
compelling as its obligation to govern at all; and whose interest, therefore, in a
criminal prosecution is not that it shall win a case, but that justice shall be done.
As such, he is in a peculiar and very definite sense the servant of the law, the
twofold aim of which is that guilt shall not escape or innocence suffer.
George Sutherland, Berger v. United Stales,
295 U.S. 78, 88 (1935)
Part Three: Traditional Research and Writing Techniques
193C
Diagram 8a: A.L.R. Snapshot
194
Essential Skills for Paralegals: Volume II
Diagram 8b: West Digest Snapshot
DIGEST INDEX & MAIN VOLUME
Part Three: Traditional Research and Writing Techniques
195C
§
8.6 WEST DIGESTS
Most digests are published by West Publishing
Company, and utilize the Key Number System.
Reporters contain court opinions. The average library
contains more than seven million cases. But reporters
don’t have indexes. West Digests act as indexes to
case law by using the Key Number System.
Digests are arranged topically. When West publishes
a court opinion within a reporter, it adds several
research tools, such as headnotes. Each headnote is
then assigned an appropriate Key Topic and Key
Number. That headnote is not only published with
the opinion, but also in its appropriate digest volume.
For instance, a case in the Pacific Reporter from Hawaii
deals with the topic of lack of consideration within
contracts. West publishing will take the headnote
dealing with that rule and assign it the Key Number of
Contracts 49(3). The headnote will then also be
published in the Hawaii Digest and the Pacific Digest
under the Topic of Contracts, Key Number 49(3),
along with all the other headnotes from cases dealing
with lack of consideration. Again, since digests act as
indexes to case law, digests are non-authority.
There are dozens of different digests. State digests,
regional digests, topical digests (i.e. Bankruptcy
Digest), the Decennial Digests, the General Digest,
Federal digests, etc. For this assignment, use the
regional digest from your region. For example, if
you are in the South Western Region, use the South
Western Digest.
196
Essential Skills for Paralegals: Volume II
No profession is open to stronger antipathies than that of the law.
Thomas Jefferson
The Index
Begin your research in the Descriptive Word Index.
West Publishing Company, the major publisher of
Reporters and Digests, titles its indexes for Digests
the Descriptive Word Index. It is a hard bound,
multi-volume index. As with all indexes, its job is to
refer the researcher to relevant material within the
main volumes.
Encyclopedias utilize Topic and Section numbers. West
Publishing utilizes its Key Number System. For more
than a hundred years, West has assigned each topic
it covers its own, very specific Key Topic and Key
Number. For research purposes, they act very much
like topic and section numbers.
After cartwheeling your topic, look up all of the terms
in the index. Don’t stop when you locate one term
and find key numbers. Look under all possible subject
matter in the index.
After checking the index supplement, the researcher
should find the main volume containing the topic and
key number provided by the index, just as if it were a
topic and section number.
ASSIGNMENT A
Using the Descriptive Word Index to a state or
regional digest, (such as the Colorado Digest or
Pacific Digest) answer these questions. (Note:
In whatever digest the researcher begins, make
sure it is the most recent edition of that digest.
Do not use the General Digest or the
Decennial Digest at this point.)
1.
How many volumes make up the
Descriptive Word Index?
2.
Is your research topic covered in the
index?
yes
no
Part Three: Traditional Research and Writing Techniques
197C
The lawyer’s vacation is the space between the question put to a witness and
his answer!
Rufus Choate
3.
The digest index leads to which of the
following?
a.
volume number, series, page number
b.
topic and section number
c.
topic and key number
4.
Does the index have a supplement?
yes
no
If yes, where is it located?
5.
If there is an index supplement, is your
topic covered?
yes
no
6.
Provide any cites to the Digest main
volumes the index may have provided.
(Such as Negligence Key #35)
The Main Volumes
The index leads the researcher to the main
digest volumes, which are arranged by topic.
After obtaining a Key Topic and Key Number from the
Descriptive Word Index, the researcher must find the
volume covering the topic. Then the specific Key Number
is found. Don’t get caught in the Scope of Topics at the
beginning of each topic. This acts as a table of contents.
While the Scope of Topics section can be helpful for
expanding research later, the index is not leading you
here. Instead, the researcher should locate the section
of the material which collects and arranges headnotes.
If there are any relevant cases to the topic, West will
provide short paragraph summaries of those cases with
the case citations. These paragraphs are basically
reprinted headnotes. Note that West Digests do not
discuss or annotate law, and since the reprinted
headnotes would never be quoted, digests would be
considered non-authority.
198
Essential Skills for Paralegals: Volume II
He [the prosecutor] may prosecute with earnestness and vigor—indeed, he should do so. But,
while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to
refrain from improper methods calculated to produce a wrongful conviction as it is to use every
legitimate means to bring about a just one.
George Sutherland, Berger v. United States, 295 U.S. 78. 88 (1935)
ASSIGNMENT B
Locate the main volume containing your topic
and key number, then answer these questions.
1.
What is the subject matter under
your topic and key number?(There
should be a short, boldfaced
sentence.)
2.
Does the digest provide footnotes?
yes
no
3.
Provide at least one citation to a case:
The Supplements
Supplements update the material within the
main volume!
Remember, the purpose of a digest is to lead the
researcher to cases which are primary authority.
However, before locating the primary authority the
digest has cited, we must make sure that the material
being researched is up to date.
Digests supplement their main volumes primarily
through the use of pocket parts. Some pocket parts
are cumulative. This means that at least one, and
possibly multiple, previous supplements have been
replaced by this new supplement. All of the material
contained in the previous supplement is now combined
with the new updates provided by this most recent
update.
In West Digests, the researcher should research the
corresponding Key Topics and Numbers in the pocket
part for each Key Topic and Number researched in the
main volume. If nothing relevant was found in the
Part Three: Traditional Research and Writing Techniques
199C
America is the paradise of lawyers.
David J. Brewer
main volume, the researcher may be able to find
relevant material in the supplement.
ASSIGNMENT C
Locate the appropriate supplements needed
to answer these questions.
1.
How was your digest volume updated?
pocket part
hard bound supplement
soft bound supplement
2.
Is there relevant information in the
supplement for your research
assignment?
Accessing Additional West Digests
Once the researcher has a Key Topic and
Number, she or he can access any West Digest.
One reason West Digests are so popular is that once
the researcher locates a relevant Key Topic and
Number, she or he can research in any of the digests
published by West.
If the researcher has done a good job researching the
index of a digest, she or he doesn’t actually have to
start over in the index of another digest. Instead,
the researcher can use the Key Topic and Number
previously found.
For example, if the researcher finds a case exactly
onpoint or a key topic and number exactly onpoint,
she or he can take that Key Topic and Number to a
state digest, such as the Virginia, West Virginia Digest,
or the Hawaii Digest, or regional digests such as the
Pacific Digest, or the Decennial Digest. This is one of
the most valuable aspects of the Key Number system.
200
Essential Skills for Paralegals: Volume II
Of course, people are getting smarter nowadays; they are letting lawyers
instead of their conscience be their guides.
Will Rogers
ASSIGNMENT D
Utilizing a Key Topic and Number the index
provided earlier, answer these questions.
1.
In which digest have you been
researching? (i.e. Pacific Digest? Hawaii
Digest? Federal Practice Digest? etc.)
2.
Write one of the Key Topic and Numbers
you have found.
3.
Find another digest, different from the
one listed above. Which digest did you
choose?
4.
Continue your research in this digest.
Do you have to use the index for this
digest?
yes
no
5.
Why, or why not?
Decennial Digests
Decennial Digests collect all digested material
over a ten-year period.
The Decennial Digest is a collection of state and federal,
appellate, supreme and, in some cases, selected trial
court material. This digest leads to cases from those
courts over a ten-year period. In fact, the volume of
law has become so voluminous that since the 9th
Decennial Digest, West has decided to break the
Decennials into Part 1 and Part 2, coming out in 5 year
intervals.
Part Three: Traditional Research and Writing Techniques
201C
What do you got in place of a conscience? Don’t answer. I know-a lawyer.
Philip Yordan & Robert Wyler
One can access the Decennial Digest just as one would
access any digest: by using the Descriptive Word Index,
or by utilizing a Key Topic and Number the researcher
obtained in another digest. In fact, some researchers start
in the Decennial because it has so much information.
ASSIGNMENT E
Locate the Decennial Digests and answer these
questions.
1.
Which Decennial Digest did you pick?
(i.e. Eighth Decennial? Tenth Decennial, Part One?
etc.)
2.
Continue your research in this digest.
Do you have to use the index for this digest?
yes
3.
no
Do the main volumes have pocket parts?
yes
no
4.
How many volumes make up the
Descriptive Word Index in the Decennial Digest?
202
Essential Skills for Paralegals: Volume II
§
8.7 AN INTRODUCTION TO SHEPARD’S
Once a researcher has found an authority and wants to cite
it, how does he or she know whether that authority has
been overturned or otherwise invalidated?
The answer is Shepard’s Citators. Using Diagrams 8c, 8d,
and 8e, become familiar with the Shepard’s system of
validation.
1.
Provide the correct citation to the case
provided in Diagram 8c.
2.
Shepardize the case using the page from
Shepard’s provided in Diagram 8e. On
the following pages, find the citation
volume number, then the citation page
number.
3.
If there is a cite in parenthesis under the
page number, this represents the parallel
citation.
4.
Notice if there are any small abbreviations
to the left of each citation. These are
history and treatment notations. They
tell you how those “citing” authorities
dealt with your “cited” authority. Refer
to the Shepard’s Abbreviation Table in
Diagram 8d to determine what each
symbol stands for.
5.
Provide the correct citation, this time
including the parallel cite provided by
Shepard’s.
Part Three: Traditional Research and Writing Techniques
203C
Diagram 8c: The Case being Shepardized
Diagram 8d:
Shepard’s Abbreviation Table
204
Essential Skills for Paralegals: Volume II
Diagram 8e: Shepard’s Citator
Part Three: Traditional Research and Writing Techniques
205C
Legal Junk Food: Actual Accident Reports
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
206
Coming home, I drove into the wrong house and collided with a tree I
don’t have.
The other car collided with mine without giving warning of its
intentions.
I thought my window was down, but found it was up when I put my
hand through it.
I collided with a stationary truck coming the other way.
A truck backed through my windshield into my wife’s face.
A pedestrian hit me and went under my car.
The guy was all over the road. I had to swerve a number of times
before I hit him.
I pulled away from the side of the road, glanced at my mother-in-law,
and headed over the embankment.
In my attempt to kill a fly, I drove into a telephone pole.
I had been shopping for plants all day and was on my way home. As I
reached an intersection, a hedge sprang up obscuring my vision. I did
not see the other car.
I had been driving my car for forty years when I fell asleep at the
wheel and had an accident.
I was on my way to the doctor’s with rear-end trouble when my
universal joint gave way causing me to have an accident.
As I approached the intersection, a stop sign appeared in a place
where no stop sign had ever appeared before. I was unable to stop in
time to avoid the accident.
To avoid hitting the bumper of the car in front, I struck the pedestrian.
My car was legally parked as it backed into the other vehicle.
An invisible car came out of nowhere, struck my vehicle and vanished.
I told the police that I was not injured; but on removing my hat, I
found that I had a skull fracture.
I was sure the old fellow would never make it to the other side of the
roadway when I struck him.
The pedestrian had no idea which direction to go, so I ran over him.
I saw the slow-moving, sad-faced gentleman as he bounced off my car.
The indirect cause of this accident was a little guy in a small car with a
big mouth.
I was thrown from my car as it left the road. I was later found in a
ditch by some stray cows.
The telephone pole was approaching fast. I was attempting to swerve
out of its path when it struck my front end.
I was unable to stop in time, and my car crashed into the other vehicle.
The driver and passengers then left immediately for a vacation with
injuries.
Essential Skills for Paralegals: Volume II
§
8.8 SHEPARD’S CITATORS
Shepard’s is the primary validator of authority.
Shepard’s is considered non-authority.
After the researcher finds primary authority, she or he
must be certain that the authority her or his attorney
is going to rely upon is still valid. This is the role of
Shepard’s.
When discussing case law, Shepard’s has three major
functions:
Validates authority.
Provides parallel cites.
Acts as a case finder.
This exercise will attempt to demonstrate these three
functions. It is necessary that the student have a
case with which to begin. Normally, a researcher would
Shepardize a case that she or he found as his or her
final step in research.
For this exercise, each student will be assigned a
citation from the list below.
Pick your citation:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
91 A.2d 865
216 A.2d 585
339 A.2d 657
391 A.2d 558
74 N.E.2d 217
81 S.W.2d 499
97 S.Ct. 658
468 N.E.2d 224
265 N.E.2d 419
365 N.E.2d 322
473 N.E.2d 264
259 N.W.2d 898
267 S.W.2d 492
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
91 P.2d 512
255 P.2d 173
391 P.2d 684
512 P.2d 507
688 P.2d 961
536 S.W.2d 549
134 S.E.2d 334
201 S.E.2d 321
112 So.2d 423
221 So.2d 272
393 So.2d. 597
78 S.Ct. 394
88 S.Ct. 929
Part Three: Traditional Research and Writing Techniques
207C
I’m not an ambulance chaser. I’m usually there before the ambulance.
Melvin Belli
ASSIGNMENT A
FIRST, LOOK UP THE ACTUAL CASE! (Not
in Shepard’s, but in the reporter itself!)
What is the name of the case?
Read the synopsis and headnotes to become
familiar with the case. Then choose one
headnote and write the headnote number
below. (Not the Key Topic and Number, but
Headnote Number 1, or Number 2, etc.)
HEADNOTE NUMBER: ___________
The Cited Material
When Shepardizing a case, it is helpful to realize that
the researcher is really Shepardizing a publication.
The place the researcher begins depends on the
publication being Shepardized. Here we will use the
cite 736 P.2d 254 as a sample cite. The case being
Shepardized is the cited case.
Step 1: Locate the Shepard’s volume for the
cited material (your cite). Our sample cite
is in the Pacific Reporter, Second Series.
We therefore must find the series titled
Shepard’s Pacific Citations.
Step 2: Find the section of Shepard’s for your
publication. Some Shepard’s volumes
contain citations for more than one
publication. For instance, Shepard’s
Nevada Citations contains citations for
the Nevada Revised Statutes, the Nevada
Reports, Pacific Reporter Nevada Cases,
etc. However, our sample cite led us to
Shepard’s Pacific Citations which only
contains citations from the Pacific
Reporter.
208
Essential Skills for Paralegals: Volume II
God works wonders now and then; Behold! A lawyer, an honest Man!
Benjamin Franklin
Step 3: Locate the pages covering the volume number
of your cite. There are multiple volumes of
Shepard’s Pacific Citations. Researching our
sample case,
we must find the book
containing Pacific Reporter Second Series volume
number 736. (Be sure to note the specific series
the book contains. One of the most common
mistakes is for the researcher to find the
Shepard’s Citator for the wrong series.) Shepard’s
provides the volumes contained within each book
on the spine of each Shepard’s volume. Once
the correct volume is found, simply turn to the
pages covering the volume: in this case, volume
736. On
the top corner of each page
Shepard’s provides the volume number on that
page, like a phone book.
Step 4: Locate the page in Shepard’s which contains
the page number of your cite. The page
numbers for the cited material will be in large,
boldfaced print. Our sample page number is
254. Newer editions of Shepard’s will also
provide the name of the case, which is very
helpful.
Now that the researcher has utilized the cited case to
access Shepard’s, the citing material will validate, or
invalidate, the cited opinion.
ASSIGNMENT B
1.
Locate the Shepard’s volume for your cite.
What is the title of the Shepard’s volume?
2.
Find the section of Shepard’s for your
publication. According to the spine, what
does your volume contain?
3.
Locate the pages in Shepard’s which
cover the volume number of your cite.
4.
Locate the page in Shepard’s which
contains the page number of your cite.
Part Three: Traditional Research and Writing Techniques
209C
The Citing Material
Citing material is material that is citing, or
mentioning, your cited case.
Shepard’s provides the following tools within the
citing material:
Parallel Cites
Immediately after the boldfaced page number and, if
there is one, the case name, Shepard’s will provide
any parallel cites in parenthesis. A parallel cite is
another publication which has published the same,
word for word opinion.
History Notations
The History of a case is indicated by the letters to the
left of the citing material immediately after the cited
page number (and any parallel cites). These cases
are previous, or subsequent, levels of the cited case
itself.
For example, “cc” in Shepard’s is a history
notation indicating that the citing case and the cited
case are “connected cases.” Refer to the Table of
Abbreviations to insure that you are referring to a
history notation, not a treatment notation.
Treatment Notations
Treatments are how other cases have viewed your
cited case. Look for any Treatments in the citing
material. These are listed after the History cites (if
there are any) in the same manner, but with different
abbreviations. For example, “f” in Shepard’s is a
treatment indicating that the citing case “followed”
the reasoning of the cited case. This might indicate
that the cases were similar.
Grouping of Jurisdictions
Shepard’s will group citing materials by jurisdictions
and publications. For instance, Shepard’s will collect
cases from federal circuits together, as well as cases
from states. Shepard’s will also group cases from
regional reporters together with other cases from the
same region. Shepard’s will not group cases into federal
districts.
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Essential Skills for Paralegals: Volume II
References to Headnotes in the Cited Case
Shepard’s has a system whereby the researcher can
focus the scope of his or her research by concentrating
only on the citing material most relevant to the issue
being researched. The original cited case may have
dealt with multiple issues, only one of which is of
interest to the researcher. If the researcher makes
note of the relevant headnote numbers in the cited
case being Shepardized, she or he can look for cases
in the citing material which refer only to those specific
headnote numbers. If, for instance, only Headnote
Number 4 is relevant for the researcher, Shepard’s will
inform the researcher which citing cases deal with the
same topic as does Headnote Number 4. Shepard’s
does this by using a raised number (or superior
number) between the citing publication abbreviation
and page number (i.e., 825 P.2d 4 173).
Utilizing Shepard’s as a Case Finder
One key to utilizing Shepard’s Citators is to
understand the tools it possesses as a case finder.
The tools under the Citing Material heading on these
pages each act not only to validate, but to assist
the researcher in locating additional case law which
may prove relevant.
Parallel Cites as Case Finders
If the researcher Shepardizes the official cite,
the unofficial parallel cite is helpful, since the
unofficial provides key topics and numbers in
the headnotes (not found in the official), which
lead to West Digests. The Digests then lead to
additional case law.
History Notations as Case Finders
The History Notations lead the researcher to
additional opinions involving the same, or a
closely related, court action as the case being
Shepardized.
Treatment Notations as Case Finders
An excellent source for finding additional
Part Three: Traditional Research and Writing Techniques
211C
relevant authority. For instance, if a cite has
an “f” next to it, this indicates that the court in
that new cite has “followed” the reasoning of
the case being Shepardized.
Grouping of Jurisdictions as Case Finders
Since Shepard’s groups its citing material by
jurisdiction (Federal Circuits, Regions, and
States), the researcher who finds an onpoint
case which is not in his or her jurisdiction may
be able to locate relevant local authority by
Shepardizing that case.
Headnote References as Case Finders
Once the researcher identifies a relevant
headnote in the cite being Shepardized, the
researcher may then focus the scope of the
research by locating citing materials with
references to the same Headnote number, not
the Key Number, but the Headnote number!
ASSIGNMENT C
Using the citation you were assigned, follow
these instructions.
212
1.
If your cite has any parallel cites,
write them down.
2.
How are they denoted?
3.
Are there any history notations in the
citing material?
yes
no
4.
If yes, provide one history cite below
and look it up. Looking at both your
original cited case and the citing history
case, how are they related?
5.
Are there any treatment notations in
the citing material?
yes
no
Essential Skills for Paralegals: Volume II
6.
If yes, provide one treatment cite below
and look it up. Looking at the citing
treatment case, where were you led?
to the first page of the citing material
to the page on which, the cited case is
mentioned
7.
Note if there are any references to head
notes in the citing material listed in
Shepard’s. These are indicated by the
raised, or superior, number between the
citing publication and page number. Are
there any references to the headnote you
chose at the beginning of this exercise?
yes
no
8.
If yes, look up the case. Is it relevant
to your cited case?
yes
no
Shepardizing Parallel Cites
A researcher should Shepardize all parallel cites that
she or he will rely upon.
The researcher should Shepardize all parallel cites. The
reason is that the Shepard’s publication for the official cite
may contain different citing material than the Shepard’s
publication for the unofficial cite. The problem a researcher
often is faced with is that not all libraries contain all the
Shepard’s publications.
Shepard’s Supplements
Shepard’s updates its hard bound volumes with
Advance Sheets and Supplements. It is critical that
each supplement, hard bound and soft bound, be
checked.
Shepard’s updates its volumes with a series of Advance
Sheets and Cumulative Supplements. They must all be
researched just as the main volume was researched. They
come out in the following order:
Part Three: Traditional Research and Writing Techniques
213C
To succeed in other trades, capacity must be shown; in the law, concealment
of it will do.
Mark Twain
WHITE ADVANCE SHEET
This is the most recent update, and is a thin,
white pamphlet.
BLUE INTERMEDIATE SUPPLEMENT
This is the newest of the supplements. It
comes out for selected volumes between the
white and red supplements.
RED CUMULATIVE SUPPLEMENT
This soft bound pamphlet collects several
advance sheets.
YELLOW CUMULATIVE SUPPLEMENT
This soft bound booklet collects several
previous supplements.
The researcher should be aware that the Shepard’s
Advance Sheets and Cumulative Supplements do not
repeat the parallel cites provided in the original
Shepard’s volume.
“Your Library Should Contain”
On the cover of each Advance Sheet (or cumulative
supplement) is a section titled “Your Library Should
Contain.” This provides a list of all the Shepard’s
materials that should be in the law library. The
researcher should always make sure the materials
are complete. If any volumes or supplements are
missing, you may want to call the phone number
provided on the back of the supplement. If you tell
Shepard’s what library you are calling from, and if the
library still subscribes to Shepard’s they will Shepardize
the material for you over the phone!
Hard bound Supplements
Some groups in Shepard’s will contain Hard bound
Supplements. Materials should be Shepardized in all
hard bound supplements. Note that if there is a hard
bound supplement, it will not repeat the parallel cites
contained in the original Shepard’s volume.
214
Essential Skills for Paralegals: Volume II
Lawyer: The only man in whom ignorance of the law is not punished.
Elbert Hubbard
ASSIGNMENT D
Using the citation you were assigned, follow
these instructions.
1.
Does Shepard’s contain pocket parts?
yes
no
2.
Research your cite in the Advance
Sheets. Did you find any citing material
in the:
white advance sheet?
red cumulative supplement?
yellow cumulative supplement?
3.
Does the set of Shepard’s you have
researched contain any hard bound
supplements?
yes
no
4.
If yes, Shepardize your case in the
hard bound supplements.
Online Validation
It is possible to validate authorities online in at least
three ways:
Shepard’s Online
Shepard’s has an online fee-based site at
shepards.com.
Westlaw
Westlaw utilizes an excellent validation tool
called InstaCite.
Lexis
Researchers may Shepardize authorities at the
click of a button on Lexis.
Part Three: Traditional Research and Writing Techniques
215C
§
8.9 SHEPARD’S REVIEW
Shepard’s is a remarkably important part of legal research, and
it is absolutely critical that a paralegal attain the skill of
Shepardizing. To be an excellent researcher, the paralegal must
utilize all the tools Shepard’s offers. Review the Shepard’s tools
listed below. If they make sense to you, you’re on your way to
becoming a good researcher. If they don’t, well, it’s time to
head back to the library!
History and Treatment Notations
These are what most researchers use Shepard’s for. They
indicate, through abbreviations, whether the authority being
Shepardized is still good authority.
Parallel Citations
When a parallel cite exists, Shepard’s will provide it in
parenthesis. Note that Shepard’s refers to what we know as
“parallel cites” under the term “cross references.” It’s still a
parallel citation, though.
Grouping Authority by Jurisdiction
Shepard’s groups authorities by state, by region, and by
Federal Circuit, helping to focus the scope of the research.
References to Headnotes in the Cited Case
The researcher may focus the scope of his or her research by
researching the cases in the citing material that have
corresponding raised, or superior, numbers after the
publication abbreviation. The number corresponds to the
headnote in the cited case, not the citing case. If you do not
understand this, go back and work on it some more. It is one
of the keys to being a great researcher.
Your Library Should Contain
On the cover of the any soft bound supplement will be a
listing of “What Your Library Should Contain.” Make sure to
check that you have a complete set of Shepard’s.
Call Shepard’s
You can call Shepard’s, tell them what library you are using,
and they will Shepardize the case over the phone for free!
This is an especially nice technique when a very important
document is about to be filed.
216
Essential Skills for Paralegals: Volume II
Next to confrontation between two highly trained, finely honed batteries of
lawyers, jungle warfare is a stately minuet.
Bill Veeck
Shepardize Other Sources
A researcher can Shepardize not just cases, but also
statutes, regulations, Restatements, A.L.R., and other
materials. The fundamental system of Shepardizing
remains the same:
1.
2.
3.
4.
5.
6.
Shepardize the publication
Look up the volume, chapter or title number
Look up the page or section number
Use the table of authorities to define symbols
Check soft bound supplements
Check hard bound supplements
Diagram 8f: Shepardizing a Federal Statute
FEDERAL STATUTE
AND
SHEPARD’S PAGE
Part Three: Traditional Research and Writing Techniques
217C
§
8.10 FEDERAL CASE LAW RESEARCH
§
8.11 U.S. SUPREME COURT CASES
Researching federal case law has some special
considerations. This exercise will discuss special
research considerations for the three main federal
courts: the U.S. Supreme Court, the U.S. Courts of
Appeal, and the U.S. District Court.
Each student will:
•
•
•
•
be assigned a cite in the U.S. Reports (official)
look up that cite in the U.S. Reports
locate the same case in the S.Ct. & L. Ed. 2d.
refer to these books as you study the following
pages
Exercise
Pick any one of the below citations and look up the
case.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
218
425
495
487
445
465
441
421
423
492
431
434
436
440
442
448
450
452
U.S.
U.S.
U.S.
U.S.
U.S.
U.S.
U.S.
U.S.
U.S.
U.S.
U.S.
U.S.
U.S.
U.S.
U.S.
U.S.
U.S.
435
385
285
552
770
520
240
87
97
195
308
412
147
560
242
503
594
Essential Skills for Paralegals: Volume II
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
455
460
462
466
468
470
472
476
478
479
481
483
485
488
490
492
494
U.S.
U.S.
U.S.
U.S.
U.S.
U.S.
U.S.
U.S.
U.S.
U.S.
U.S.
U.S.
U.S.
U.S.
U.S.
U.S.
U.S.
457
536
835
243
288
116
14
1
30
60
400
350
478
75
794
573
652
ASSIGNMENT A
Provide the full citation, including parallel cites.
(You will probably need to Shepardize the case to get
the parallel cites.) Then look up the case in the parallel
publications. (You should keep all three books out
for the rest of the Supreme Court part of this exercise.)
The reason all parallel cites should be used is that
the reader cannot be certain which set of books the
reader of a document will have access to.
Using the Unofficial Publications
When researching U.S. Supreme Court cases, the
researcher generally wants to utilize one of the unofficial
publications. This is because the official publication
contains the opinion with limited notes. The unofficial
publications contain research tools, such as headnotes
and Key Numbers.
Star Pagination
The unofficial publications (S. Ct. & L. Ed. 2d) provide a
system called Star Pagination. This system informs the
researcher what page she or he should be on if she or he
were in the official publication (U.S. Reports). Can you
find Star Pagination notations in the unofficial
publications? They are usually set forth by the use of
asterisks, or brackets. (If you can’t find one, ask the
instructor to point it out.)
Headnotes, Annotations and Briefs
Headnotes are short paragraphs located at the beginning
of a case referring to portions of the case. Both of the
unofficial publications of U.S. Supreme Court cases
contain headnotes, and some editions of the official
U.S. Reports include them, as well.
Annotations are commentaries or discussions of a case.
The United States Supreme Court Reports, Lawyer’s
Edition includes annotations of selected cases. These
annotations are contained in the back of each volume.
The annotations are updated by means of pocket parts
in L. Ed. 2d.
Part Three: Traditional Research and Writing Techniques
219C
L. Ed. 2d. provides another unique tool. Many cases
are supplemented in the back of each volume with a
summary of the attorney’s argument at trial, often
called briefs. They are valuable tools since they provide
the strategy that was argued before the court.
ASSIGNMENT B
1.
Which of the three publications would you use
to locate topics and key numbers for your
case?
220
2.
Which of the three publications contains
full annotations?
3.
Where are the annotations located?
4..
Is every case annotated?
yes
no
5.
Is your case annotated?
yes
no
6.
How are the annotations updated?
Essential Skills for Paralegals: Volume II
§
8.12 U.S. APPELLATE COURT CASES
The Federal Reporter first, second and third series
contain U.S. Courts of Appeal cases. Not all federal
appellate court opinions are published. The court
designates which opinions will be published.
However, one of the more recently published law books
prints cases that have not been designated by the
court for publication. This book is the Federal Appendix
(Fed. Append.) It is somewhat controversial as a
source of authority, and should most likely only be
cited as a last resort.
Choose one of the following citations, then answer
the questions provided.
203 F.2d 430
256 F.3d 516
153 F.2d 615
134 F.2d 217
31 F.2d 325
905 F.2d 471
342 F.2d 255
156 F.3d 581
87 F.3d 431
567 F.2d 225
69 F.3d 920
989 F.2d 566
283 F.2d 827
27 F.3d 194
172 F.3d 649
711 F.2d 805
157 F.2d 715
41 F.2d 524
ASSIGNMENT C
1.
Using proper citation form, provide the
citation for your case.
2.
Is there a parallel citation for your case?
Explain your answer.
3.
At the front of each volume of the Federal
Reporter you will find a map of the circuits.
In which federal circuit are you, or your class,
located? What other states contain Districts
that are in your circuit?
Part Three: Traditional Research and Writing Techniques
221C
Delusive exactness is a source of fallacy throughout the law.
Oliver Wendell Holmes, Jr.
§
8.13 U.S. DISTRICT COURT CASES
The Federal Supplement, first and second series, contain
the published cases from the U.S. District Court. Not
all cases are published. The court designates specific
cases for publication. Choose one of the following cites.
717 F. Supp. 162
609 F. Supp. 733
460 F. Supp. 573
528 F. Supp. 664
723 F. Supp. 107
1 F. Supp.2d 103
51 F. Supp.2d 597
77 F. Supp.2d 1014
519 F. Supp.2d 1029
630 F. Supp. 827
528 F. Supp. 664
534 F. Supp. 549
592 F. Supp. 1219
749 F. Supp. 400
814 F. Supp. 646
72 F. Supp.2d 9
18 F. Supp.2d 182
445 F. Supp. 311
ASSIGNMENT D
1.
Provide the citation for the case you have
chosen.
2.
222
Is there a parallel citation for your case?
Explain your answer.
Essential Skills for Paralegals: Volume II
§
8.14 FEDERAL STATUTORY RESEARCH
As with most other research tools, the researcher
should begin in the index of the code.
There are three places to find federal statutes:
U.S.C. (United States Code)
U.S.C.A. (United States Code Annotated)
U.S.C.S. (United States Code Service)
When researching federal statutes, one should always
use either the U.S.C.A., U.S.C.S., or both. The reason
is that while the U.S.C. contains only the statutes,
the two unofficial publications contain additional
research aids. However, when citing the Code, one
should cite to the official publication, even if
researching in an unofficial publication of the Code.
Do this by simply dropping the “A” in U.S.C.A. or the
“S” in U.S.C.S. Remember, all three contain the U.S.
Code.
The statutes are arranged by Title and Section number.
Therefore, 18 U.S.C. §4180 (1980) means Title 18 in
the United States Code, Section 4180. First, look for
the Title on the binding. Be careful to find the Title,
not the volume number.
Next, turn to the page on which the section number
appears. (Note that you are not led to the exact page
number.)
Once you find the section number, you should note
the topic of the statute you have found. It will be in
bold print. Following the topic of the statute is the
statute itself. The statute is usually surprisingly brief.
Following the statute will be a series of dates and
section numbers in parentheses detailing the history
of the statute. Historical and Revision Notes detail
any changes in the statute and often help define the
purpose of those changes.
Part Three: Traditional Research and Writing Techniques
223C
Cross References, Library References, and Code
of Federal Regulations are means by which the
researcher may broaden his or her research. Notes
of Decisions are case summaries (similar to
headnotes) which have actually applied, or defined,
the statute. They are often preceded by an index to
the Notes themselves. Therefore, U.S.C.A. and
U.S.C.S. also act as excellent case finders.
ASSIGNMENT
For this exercise, pull out a volume of the U.S.C.,
U.S.C.A., and U.S.C.S. for comparison. Review
the instructions on this page in conjunction with
the volumes, then answer the questions below.
224
1.
Find the statute establishing the
Cumberland Gap National Historic Park.
2.
What courts have jurisdiction over
offenses committed on reservations?
3.
Who determines a dam’s fitness to
withstand an earthquake?
4.
Is there a limitation on liability for
damage caused by the Trans-Alaska
Pipeline?
5.
Can you find a statute protecting
“whistle-blowers” from adverse
consequences?
6.
What is the aggregate liability for a
single-family dwelling in Hawaii under
Federal Flood Insurance?
Essential Skills for Paralegals: Volume II
§
8.15 STATE STATUTORY RESEARCH
Although there are differences between statutes from
one state to another, there are many aspects that will
be universally true, from one state to the next.
How are statutes arranged?
Statutes are arranged by topic. For instance, typically,
all the statutes that deal with traffic laws are collected
in the same chapter or title.
How are statutes cited?
Statutes are not cited by volume and page number, as
are cases. Instead, statutes are arranged by either
title and section number, or chapter and section
number. An example of a state statute: §13-22221(1)(a), C.R.S. 1999. This citation refers to Title
13, Chapter 22, Section 221, Subsection 1a of the
Colorado Revised Statutes. Be flexible. Various states
arrange the citation so that the chapter, or title, and
the section number are not immediately evident. For
instance: N.R.S. §200.110. This example refers to
Nevada Revised Statutes, Chapter 200, Section 110.
How do I research in state statutes?
As in most research materials, start in the index. The
index leads the researcher to the main volumes by
providing a Title or Chapter and Section number.
ASSIGNMENT
1.
What Title or Chapter deals with
Automotive Repair Shops in your state’s
statutes?
2.
What Titles or Chapters cover criminal
statutes?
3.
What statute covers involuntary
manslaughter?
Session Laws
Session Laws are hard
bound publications that collect the acts and laws
passed by the legislature.
They collect and arrange
them yearly, and unlike the
regular statutes, Session
Laws do not attempt to accumulate all statutes. Only
the ones passed or modified in a given year. Therefore, the Session Laws will
consist of many volumes,
each volume representing
the acts and laws passed
by the legislature for that
year.
Session laws are sometimes called Statutes at
Large or other similar titles.
It should be noted that
there are a few states that
do not publish Session
Laws in any form.
Can you find the Session
Laws for your state? What
are they called?
Part Three: Traditional Research and Writing Techniques
225C
Legal writing is one of those rare creatures, like the rat and the cock roach,
that would attract little sympathy even as an endangered species.
Richard Hyland
226
Essential Skills for Paralegals: Volume II
chapter 9
Notices, Motions and Briefs
§
9.1 WHAT ARE MOTIONS?
Motions and pleadings are often collected within the
same part of the client file. In fact, many paralegals,
and a some attorneys, would have a tough time telling
you the difference between the two. There is a
difference, and it is helpful to know!
A motion is part of the procedure of litigation. It can
be oral, such as when an attorney moves to strike a
part of a witness’s testimony during the trial. Most
motions are written, and most occur during the pretrial stage.
Motions are usually the procedural request that the
court take some action, and are typically not very long.
To convince the court that the motion should be granted,
the attorney usually includes a section called Points
and Authorities, or files a separate trial brief. The trial
brief, sometimes referred to as Points and Authorities,
analyzes authority attempting to apply existing law to
the current facts in order to convince the court. Briefs
are similar in form to an interoffice memorandum, except
that they utilize pleading format and are subjective,
meaning they only argue the favorable points of the
client’s case. In other words, the brief must convince
the reader!
Following are just a few examples of some common
motions.
Motion to Dismiss
Asking the court to end the litigation without
going to trial. If successful, most dismissals are
without prejudice, meaning the case can be refiled. If the matter is dismissed with prejudice,
the case may not be filed again.
Motion to Change Venue
A request that the court move the trial to another
physical location. The motion is usually based
on the argument that the current jurisdiction is
somehow prejudicial to one of the parties.
Part Three: Traditional Research and Writing Techniques
227C
Motion in Limine
A motion, usually made at the start of a trial, requesting
that the judge rule that certain evidence may not be
introduced in trial. This is most common in criminal trials.
May also be used to limit issues.
Motion to Suppress
A request that the court not allow certain specific evidence
to be introduced at trial.
Motion to Compel
Asking the court to make someone do something. The
most common of these documents is the Motion to Compel
Discovery, and is used to force a party to more fully or
accurately respond to certain discovery requests. Also
common is a Motion to Compel the Appearance of a
Witness.
Motion to Continue
This motion asks that a trial or hearing be continued until
a later point. May also be used to request more time to
respond to a motion, similar to a Motion to Extend (see
below).
Motion to Extend
Sometimes called a Motion for Enlargement, this is a
request asking the court to allow more time to respond to
a motion.
Motion for Summary Judgment
Asking the court during the pretrial stage to determine
the outcome of a case without the jury’s consideration,
since there are no facts in dispute. And if there are no
facts in dispute, only the law needs to be applied, which
is the duty of the court. Thus, a trial is not necessary.
This is usually the last motion filed before the trial begins.
Motion for Directed Verdict
Similar in effect to a Summary Judgment, this is a trial
motion presented after a party has presented his or her
case. The opposing party argues that a prima facie case
has not been established, and therefore the case should
be ended in favor of the moving party.
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Motion for Judgment NOV
Post trial motion arguing that the jury made a
mistake, and asking the court to set aside the
jury’s decision and apply its own determination
upon the matter.
Motion for a New Trial
Motion made after the trial asking the court to
invalidate the results of the trial due to a specified
procedural error. In many jurisdictions, this motion
is required in order to later appeal. On appeal,
the appellant is required to have used all possible
avenues for relief. This is referred to as an
“exhaustion of remedies.”
§
9.2 WHAT ARE NOTICES?
A Notice helps to fulfill the requirement that all interested
parties be informed of any potential action by the court.
Most of the previously referred to motions will require
that a hearing be set. Different courts have different
procedures for setting hearing dates. The clerk of the
court will be able to instruct you as to those details.
Once the hearing date has been set, all parties involved
in the litigation must be noticed as to the hearing. This
is done, obviously, by a Notice of Hearing. The notice
may be part of the motion itself, or it may be a separate
document. In any case, it is a critical part of motion
practice!
§
9.3 WHAT ARE BRIEFS?
Sometimes called a memorandum, a brief is a written
legal argument. It is similar to an interoffice
memorandum, except that instead of objectively
analyzing authority, the author attempts to convince
the reader. A Trial Brief is filed during the pre-trial or
trial stage, and attempts to convince the court to rule
on a procedural issue in the author’s favor. An Appellate
Brief attempts to convince an appellate level court that
the trial court erred. Briefs are in pleading form. They
may be stand-alone documents, or they may be combined
with the related Notice and Motion.
Part Three: Traditional Research and Writing Techniques
229C
§ 9.4
EXAMPLE OF A COMBINED MOTION, NOTICE, & BRIEF
JUSTICE COURT
HINTON COUNTY, STATE OF CONFUSION
)
)
Plaintiff,
)
)
v.
)
)
)
JOY SMITH
)
Defendant.
)
__________________________________)
JOHN JOHNSON
Case No: 03-38920
Hearing Date: 1-04-04
Hearing Time: 2:30 P.M.
MOTION FOR SUMMARY JUDGMENT
COMES NOW, Defendant by and through her attorney of record, JANE SODERLY, ESQ. of the Law Offices of
DAILY AND MYERS, and hereby files her Motion for Summary Judgment.
This Motion is made and based upon the Points and Authorities attached herein, the papers and any oral
argument which may be entertained at the time of the hearing on this matter.
Dated this _____ day of __________, 2004.
By______________________
Jane Soderly, Esq.
Attorney for Defendant
Address
Phone Number
Bar Number 93-257
NOTICE OF MOTION
TO:
JOHN JOHNSON, Plaintiff; and
TO:
BORLAND AND BORLAND, his counsel.
YOU AND EACH OF YOU, WILL PLEASE TAKE NOTICE that the undersigned will bring the foregoing
Motion for Summary Judgment on for hearing before the above-entitled Court in Dept. 2, on the _____ day of
________, 2004, at the hour of _______ .m. or soon thereafter as counsel can be heard.
Dated this __ day of ____, 2004.
_______________________________
Attorney for Defendant
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POINTS AND AUTHORITIES
STATEMENT OF FACTS
On or about July 5, 2003, at approximately 2:00 p.m. Plaintiff, at her own instigation, entered onto Defendant’s
property for the stated purpose of handing out a brochure about area real estate. The Plaintiff had not been invited, and
the brochures had not been requested by Defendant.
Upon getting no response after knocking on the front door, the Plaintiff, noticing the garage door was open,
proceeded to enter the garage with the stated intent of knocking on the house door within the garage. To get to this
door, Plaintiff was required to enter garage and walk between Defendant’s car and several boxes stacked along the wall
of the garage. As Plaintiff was walking through the garage, Plaintiff bumped into some of the stored boxes, causing
some of them to fall upon Plaintiff, causing his alleged injuries.
Plaintiff filed suit asking the court to compensate for injuries received. Defendant claims that once Plaintiff
entered Defendant’s property uninvited, a trespass occurred and no liability can be placed upon Defendant.
ISSUE
1.
Has the Plaintiff established a valid claim upon which relief could be granted?
ARGUMENT
1.
Has the Plaintiff established a valid claim upon which relief could be granted?
Authority establishes that without a valid cause of action, the court must not simply dismiss, but enter
judgment on behalf of the Defendant. Plaintiff’s Complaint fails to state a claim for which relief can be granted. In Evers
v. Wagner, 101 Neb. 226, 699 N.W.2d 110 (1985), Plaintiff was found to have failed to set forth elements in the complaint
that would allow compensation to be awarded. In that matter, the Plaintiff only established the damages sustained in a
car accident, but failed to properly establish to the Court’s satisfaction that the cause of the accident was the
Defendant’s. The court held:
Upon considering a motion to dismiss or summary judgment, a court is to determine
whether allegations contained in the challenged pleading are sufficient to make out
the elements of a right to relief. If those allegations are not sufficient to meet this
standard, the court is obligated to enter immediate judgment based upon the law.
Evers, supra. at 115.
Part Three: Traditional Research and Writing Techniques
231C
Defendant did not invite Plaintiff to her property, and never requested the brochure Plaintiff was attempting to deliver.
Plaintiff’s delivery was solely and completely for the benefit and advancement of the Plaintiff, who hoped to enter into a
sales agreement based upon the marketing strategy of delivering brochures. Due to the lack of allegations amounting to a
valid right to relief, the Court is obligated to enter a summary judgment on behalf of the Plaintiff.
In deciding a motion to dismiss or a motion for summary judgment, the Court must liberally construe Plaintiff’s
allegations and draw every fair inference in favor of the Plaintiff. Having done so, if the Court still finds no right to relief, it
must enter judgment on Defendant’s behalf. In Repoint v. Tayaki, 110 Tenn. 481, 474 S.W.2d 744 (1969), the Court in its
ruling found that even when Plaintiff was given every benefit of the doubt on contested facts, no cause of action could be
sustained. The Court dismissed the action and held, “No single presumption or imagined fact may sustain a cause of
action as valid when even such perceived wrongdoings do not directly relate to a quantifiable damage suffered upon the
plaintiff.“ 474 S.W. at 751.
In the case at bar, there is no dispute regarding the invitee status of the Plaintiff. No presumption or imagined fact
is even attempted by the complaining party. Given the similarity between the above cited case and Plaintiff’s weak argument
that the possibility of wrongdoing existed, a motion for summary judgment should be granted if it appears beyond doubt that
the plaintiff could prove no facts which, if accepted by the trier of fact, could entitle him to relief.
CONCLUSION
1.
The Plaintiff has failed to establish a valid claim upon which relief can be granted, and the court should
therefore enter judgment in Defendant’s favor.
Dated this __ day of ____, 2004.
By______________________
Jane Soderly, Esq.
Attorney for Defendant
Address
Phone Number
Bar Number 93-257
CERTIFICATE OFMAILING
day of ____, 2004, I placed a true and correct copy of the foregoing MOTION
I hereby certify that on this
FOR SUMMARY JUDGMENT, NOTICE, and POINTS AND AUTHORITIES in the United States Mail, postage prepaid,
addressed to counsel on the attached list:
_____________________________________________________________
Patty Simmons, Paralegal
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§
9.5 EXAMPLE OF SEPARATE MOTION
JUSTICE COURT
HINTON COUNTY, STATE OF CONFUSION
)
)
Plaintiff,
)
)
v.
)
)
)
JOY SMITH
)
Defendant.
)
__________________________________)
JOHN JOHNSON
Case No: 03-38920
Hearing Date: 1-04-04
Hearing Time: 2:30 P.M.
MOTION FOR SUMMARY JUDGMENT
COMES NOW, Defendant by and through his attorney of record, JANE SODERLY, ESQ. of the Law Offices of
DAILY AND MYERS, and hereby files his Motion for Summary Judgment.
This Motion is made and based upon the Points and Authorities attached herein, the papers and any oral
argument which may be entertained at the time of the hearing on this matter.
Dated this _____ day of _____________, 2004.
By______________________
Jane Soderly, Esq.
Attorney for Defendant
Address
Phone Number
Bar Number 93-257
CERTIFICATE OFMAILING
day of ______, 2004, I placed a true and correct copy of the foregoing MOTION
I hereby certify that on this
FOR SUMMARY JUDGMENT and attached TRIAL BRIEF in the United States Mail, postage prepaid, addressed to
counsel on the attached list:
Frank Borland, Attorney for Plaintiff
234 Novia Drive
Somewhere, USA 37849
James Fetter
8390 Sommer Court
Nowhere, USA 48392
_____________________________________________
Patty Simmons, Paralegal
Part Three: Traditional Research and Writing Techniques
233C
§
9.6 EXAMPLE OF SEPARATE NOTICE
JUSTICE COURT
HINTON COUNTY, STATE OF CONFUSION
)
)
Plaintiff,
)
)
v.
)
)
)
JOY SMITH
)
Defendant.
)
__________________________________)
JOHN JOHNSON
Case No: 03-38920
Hearing Date: 1-04-04
Hearing Time: 2:30 P.M.
NOTICE OF MOTION HEARING
TO:
JOHN JOHNSON, Plaintiff; and
TO:
BORLAND AND BORLAND, his counsel.
YOU AND EACH OF YOU, WILL PLEASE TAKE NOTICE that the undersigned will bring the foregoing
Motion for Summary Judgment on for hearing before the above-entitled Court in Dept. 2, on the _____ day of
________, 2004, at the hour of _______ .m. or soon thereafter as counsel can be heard.
Dated this __ day of ____, 2004.
By______________________
Jane Soderly, Esq.
Attorney for Defendant
Address
Phone Number
Bar Number 93-257
CERTIFICATE OFMAILING
day of ______, 2004, I placed a true and correct copy of the foregoing NOTICE
I hereby certify that on this
OF HEARING in the United States Mail, postage prepaid, addressed to counsel on the attached list:
Frank Borland, Atty. for Plaintiff
234 Novia Drive
Somewhere, USA 37849
James Fetter
8390 Sommer Court
Nowhere, USA 48392
_____________________________________________
Patty Simmons, Paralegal
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Essential Skills for Paralegals: Volume II
§
9.7 EXAMPLE OF SEPARATE TRIAL BRIEF
JUSTICE COURT
HINTON COUNTY, STATE OF CONFUSION
)
)
Plaintiff,
)
)
v.
)
)
)
JOY SMITH
)
Defendant.
)
__________________________________)
JOHN JOHNSON
Case No: 03-38920
TRIAL BRIEF
COMES NOW the Defendant in the above stated matter, and hereby presents her TRIAL BRIEF in support of
her Motion for Summary Judgment.
STATEMENTS OF FACTS
On or about July 5, 2003, at approximately 2:00 p.m. Plaintiff, at her own instigation, entered onto Defendant’s property
for the stated purpose of handing out a brochure about area real estate. The Plaintiff had not been invited, and the
brochures had not been requested by Defendant.
Upon getting no response after knocking on the front door, the Plaintiff, noticing the garage door was open,
proceeded to enter the garage with the stated intent of knocking on the house door within the garage. To get to this
door, Plaintiff was required to enter garage and walk between Defendant’s car and several boxes stacked along the wall
of the garage. As defendant was walking through the garage, Plaintiff bumped into some of the stored boxes, causing
some of them to fall upon Plaintiff, causing his alleged injuries.
Plaintiff filed suit asking the court to compensate for injuries received. Defendant claims that once Plaintiff
entered Defendant’s property uninvited, a trespass occurred and no liability can be placed upon Defendant.
ISSUE
1.
Has the Plaintiff established a valid claim upon which relief could be granted?
Part Three: Traditional Research and Writing Techniques
235C
ARGUMENT
1.
Has the Plaintiff established a valid claim upon which relief could be granted?
Authority establishes that without a valid cause of action, the court must not simply dismiss, but enter
judgment on behalf of the Defendant. Plaintiff’s Complaint fails to state a claim for which relief can be granted. In Evers
v. Wagner, 101 Neb. 226, 699 N.W.2d 110 (1985), Plaintiff was found to have failed to set forth elements in the complaint
that would allow compensation to be awarded. In that matter, the Plaintiff only established the damages sustained in a
car accident, but failed to properly establish to the Court’s satisfaction that the cause of the accident was the
Defendant’s. The court held:
Upon considering a motion to dismiss or summary judgment, a court is to determine
whether allegations contained in the challenged pleading are sufficient to make out
the elements of a right to relief. If those allegations are not sufficient to meet this
standard, the court is obligated to enter immediate judgment based upon the law.
Evers v. Wagner, 669 N.W.2d at 115.
In the instant case, Plaintiff has not established that Defendant had any liability. Plaintiff has acknowledged
that Defendant did not invite Plaintiff to her property, and never requested the brochure Plaintiff was attempting to
deliver. Plaintiff’s delivery was solely and completely for the benefit and advancement of the Plaintiff, who hoped to
enter into a sales agreement based upon the marketing strategy of delivering brochures. Due to the lack of allegations
amounting to a valid right to relief, the Court is obligated to enter a summary judgment on behalf of the Plaintiff.
In deciding a motion to dismiss or a motion for summary judgment, the Court must liberally construe plaintiff’s
allegations and draw every fair inference in favor of the plaintiff. Having done so, if the Court still finds no right to relief,
it must enter judgment on Defendant’s behalf. In Repoint. v. Tayaki., 110 Tenn. 481, 474 S.W.2d 744 (1969), the court in
its ruling found that even when Plaintiff was given every benefit of the doubt on contested facts, no Cause of Action
could be sustained. The court dismissed the action and held, “No single presumption or imagined fact may sustain a
cause of action as valid when even such perceived wrongdoings do not directly relate to a quantifiable damage suffered
upon the plaintiff.” 474 S.W.2d at 751
In the case at bar, there is no dispute regarding the invitee status of the Plaintiff. No presumption or imagined
fact is even attempted by the complaining party. Given the similarity between the above cited case and Plaintiff’s weak
236
Essential Skills for Paralegals: Volume II
argument that the possibility of wrongdoing existed, a motion for summary judgment should be granted if it appears
beyond doubt that the plaintiff could prove no facts which, if accepted by the trier of fact, could entitle him to relief.
CONCLUSION
1.
The Plaintiff has failed to establish a valid claim upon which relief can be granted, and the court
should therefore enter judgment in defendant’s favor.
Dated this __ day of ____, 2004.
By____________________________________
Jane Soderly, Esq.
Attorney for Defendant
Address
Phone Number
Bar Number 93-257
CERTIFICATE OFMAILING
day of ______, 2004, I placed a true and correct copy of the foregoing TRIAL
I hereby certify that on this
BRIEF in the United States Mail, postage prepaid, addressed to counsel on the attached list:
Frank Borland,
Attorney for Plaintiff
234 Novia Drive
Somewhere, USA 37849
James Fetter
8390 Sommer Court
Nowhere, USA 48392
_____________________________________________
Patty Simmons, Paralegal
Part Three: Traditional Research and Writing Techniques
237C
§ 9.8
RESEARCH & WRITING ASSIGNMENT
Each student will prepare:
-a Motion (either a Motion for Summary Judgment or
a Motion to Dismiss)
-a Notice (students may set a response date at least
10 days after the due date of the assignment)
-a Trial Brief in Support (also called a Trial
Memorandum or Points and Authorities)
The student will prepare the brief based upon the same
facts and issues they have been researching for their
assigned clients. The documents may be combined, or
they may be separate documents. If the documents are
separate, they should be stapled together with the motion
on top. While a paralegal would normally attach copies
of the authorities being relied upon, unless your instructor
requires it, you are not required to do so for this
assignment.
Students may already have a significant amount of
material from previous research exercises and
assignments. Students should feel free to use any
previously located authorities. The memorandum should
include:
•
At least three authorities (statutes, cases,
etc.) Students may use any combination of
authorities, such as three cases, two cases
and a statute, etc.
• Be
sure to Shepardize any and all
authorities which will be used in the Brief
• Prepare
the motion, notice, and memorandum
(forms have been provided on the CD
accompanying this book)
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Essential Skills for Paralegals: Volume II
§ 9.9
EXAMPLE OF A TRIAL BRIEF
John Doe
Bar No. 91-2872
1212 12th Street
Your City, USA 07019
(555) 555-0504
Attorneys for Plaintiff
DISTRICT COURT
YOUR COUNTY, YOUR STATE
* * *
JANET SMITH,
)
Plaintiff
)
)
vs.
)
)
NICK DICKERSON,
)
and DOES I through
)
V, inclusive,
)
and ROE CORPORATIONS
)
I through V, inclusive,
)
)
Defendants.
)
_________________________________ )
CASE NO:
DEPT NO:
DCKT NO:
TRIAL BRIEF
COMES NOW the Plaintiff________________, by and through her attorneys,
__________, and hereby files Plaintiff’s Trial Brief in the above titled action.
FACTS OF THE CASE
On or about July 1, 2003, Plaintiff applied for a position as systems analyst with
Defendant Corporation,_________________. She was notified by letter that her
interview would take place of July 5, 2003 at 9:00 a.m. with Defendant Nick
Dickerson. Plaintiff arrived at the interview wearing a blue dress cut just above the
knee. Plaintiff entered Mr. Dickerson’s office.
Part Three: Traditional Research and Writing Techniques
239C
Immediately upon entering his office, Defendant Dickerson asked the question, “Do
you always wear skirts that short, or just till you get the job?” Plaintiff indicated
that she would abide by any dress code the corporation deemed appropriate, and
asked if her dress was too short. Defendant Dickerson replied, “Not for me.” During
the rest of the interview, Defendant Dickerson seemed to concentrate more on
personal questions than Plaintiff’s job qualifications. Defendant Dickerson asked
whether the Plaintiff was available to work evenings if necessary, to travel with
Defendant, and whether Plaintiff was happily married.
After approximately fifteen minutes of the interview, Plaintiff informed Defendant
that she was only interested in a job, and felt uncomfortable with the nature of the
questions being asked in the interview. Defendant told Plaintiff that, “You need to
lighten up.” When Plaintiff said she would be glad to continue the interview if it
concentrated on her work qualifications only. Defendant then immediately rose
from his chair and declared, “I think the interview just ended.”
Later that day, at approximately 4:00 p.m., Defendant called Plaintiff at her home.
Defendant said that he regretted that the interview had ended on a bad note. He
suggested that they meet at a bar to “Get to know each other a bit better.” Plaintiff
asked if she was still in the running for the job, and the Defendant said it depended
on how the meeting that night went. Plaintiff declined the offer to meet the
Defendant.
Plaintiff subsequently received notice that she had not been selected for the position.
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Essential Skills for Paralegals: Volume II
Plaintiff alleges that she was denied the position due to her reluctance to engage in
activities and conduct outside the job description for the position.
ISSUE
1.
Can a potential employer who sexually harasses an applicant be sued for
such conduct?
ARGUMENT
1.
Can a potential employer who sexually harasses an applicant be sued for
such conduct?
Case law establishes that an applicant may not be denied due to discrimination. In
Byers v. Helton Industries, 994 F.2d 1248 (9th Cir. 1994), a woman applying for a
secretarial position was told that she did not receive the position because the
employer was looking for a single applicant. The reason given was that a married
woman would have distractions, from pregnancy and child care to marital difficulties
or divorce, and that the company found single secretaries more dependable. The
woman sued arguing discrimination based upon marital status. The Ninth Circuit
Court of Appeals upheld the lower court decision in holding:
In seeking employment, an applicant has the right to expect
consideration based only upon relevant skills to the position
sought. To hire based on real or perceived preconceptions of
potential availability due to applicant’s marital status constitutes
ad hoc discrimination. Only skills and qualifications relevant to the
actual position being sought may be considered in hiring, unless
aspects of the job reasonably tend to require external
qualifications to be considered.
994 F.2d at 1253
Part Three: Traditional Research and Writing Techniques
241C
In the instant case, the discrimination was based upon the Plaintiff’s unwillingness to
submit to the flirtatious nature of the interviewer. As soon as she stated that she
was only interested to questions relevant to the job for which Plaintiff was
interviewing, the Defendant ended the interview. Byers v. Helton, supra, states that
only “skills and qualifications relevant to the actual position being sought…” should
be considered. This was all Plaintiff expected and demanded as a qualified applicant.
The Defendant’s conduct clearly sought Plaintiff’s willingness to engage in “external”
activities, such as travel and personal relationships. Such conduct, according to
Byers, supra constitutes “ad hoc discrimination.”
CONCLUSION
Defendant Dickerson by his conduct, and Defendant Corporation___________ as
Defendant Dickerson’s employer, engaged in sexual harassment of an applicant, the
Plaintiff in this action. When hiring is based upon such irrelevant criteria, the
damaged party may sue for discrimination. The Plaintiff in this action was subjected
to discrimination through sexual harassment in the interview process.
Submitted this ____day of _______, 2004.
_______________________
John Doe
Attorney for Plaintiff
Bar #91-2872
1212 12th Street
Your City, USA 07019
(555) 555-0504
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Essential Skills for Paralegals: Volume II
§
9.10 TABLE OF AUTHORITIES
A Table of Authorities is simply an index of all materials
relied upon in a preceding legal document. While not
required in most legal writings except Appellate Briefs,
the Table of Authorities is a nice touch, and makes
authorities within the document easier to locate. The
table may be arranged in two ways:
Grouped by Kind of Authority
The most common form of Table of Authorities lists
the authorities by groups, such as constitutions, cases,
statutes, and so forth. The highest form of authority
is listed first, (such as constitutions), then proceeds
through each set of groupings. Within each group, the
authorities should be listed by order of their appearance
within the document.
Listed in Order of Appearance
Also acceptable, a Table of Authorities that simply
lists the authorities in the order in which they appear
in the document.
The Table of Authorities is attached at the end of the
brief. Also attach copies of any authorities listed in
the Table of Authorities, stapling them behind the Table
and Brief.
On the following page is an example of a Table of
Authorities.
Part Three: Traditional Research and Writing Techniques
243C
Diagram 9a: Table of Authorities
TABLE OF AUTHORITIES
Constitutions
U.S. Const. Art. I, § 7 …………………………………………………... 2
Nev. Const. Art. X, § 2…………………………………………………... 2
Statutes
N.C.G.S. § 200.160 …………………………………………………………. 3
29 U.S.C. § 253 ……………………………………………………………... 3, 4
Cases
Ashby v. Gant, 691 F. Supp. 214 (D.Nev. 1992) …………..1, 2
Chart v. Jones, 97 F.3d 1163 (10th Cir. 1996) …………... 2, 4
Davis v. Bauer, 746 F. Supp. 523 (D.Nev. 1994) ……….. 5
Court Rules
N.R.C.P. 56 (a)(1) …………………………………………………………. 5
Administrative Regulations
31 C.F.R. § 114.80(a)(1977)……………………………………….. 2
Secondary Authority
4 Am. Jur. 2d, Attorneys § 112 (1979)…………………………….3
67 C.J.S., Real Property § 42 (1983)………………………………2
Restatement (Second) of Torts § 349 (1972)…………………5
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Essential Skills for Paralegals: Volume II
V O L U M E II
part 4
Non-traditional Research & Writing Techniques
A Higher Level
As the title of this part of the manual suggests, the
techniques discussed in the following pages present
tools that, while available to any paralegal or attorney,
are not as commonly utilized. There is an advantage
to becoming familiar with the books and developing
the writing techniques presented here. Using these
tools can set you apart from other researchers and
writers.
Part Four Chapters:
10. Accessing Authority
Online
11. The Desperate
Researcher
12. Non-traditional
WritingTechniques
Students will learn to access authority through online
research sources. Don’t make the mistake of thinking
that the online sources can completely replace the
need for law library skills. Having key law library
research skills, coupled with experience and expertise
will make a paralegal better as an online researcher.
One of the most important points a researcher should
understand is that at this point, you are not really
learning anything new, but are building on skills already
possessed. To this end, we will be emphasizing some
techniques not often utilized in traditional sources.
In addition, students will be presented with several
new research sources that utilize the same system of
legal research presented in previous chapters.
Students have already been taught how to compare
cases in a legal memoranda or brief. Now students
will be instructed as to the technique of synthesizing
authority. In other words, you will be taught to utilize
multiple forms of authority together to make a legal
argument stronger.
Assignments
LexisNexis Online Trial
§ 10.3
Due Date:
/
/
Westlaw Online Trial
§ 10.15
Due Date:
/
/
General Digests
§ 11.8
Due Date:
/
/
Restatements
§ 11.9
Due Date:
/
/
Legal Periodicals
§ 11.12
Due Date:
/
/
Other Assignment:
§ ___.___
Due Date:
/
/
Part Four: Non-traditional Research and Writing Techniques 245
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246 Essential Skills for Paralegals: Volume II
chapter 10
Accessing Authority Online
§
10.1 ONLINE SITES
The amount of legal research sites are growing every
year. While there are some worthwhile free sites
available online, most do not contain sufficient
databases or updating systems upon which lawyers
could rely.
There are several fee-based sites now available online.
They differ greatly in cost and content. Following are
a few of the fee-based sites currently online:
Westlaw (westlaw.com)
One of the two premier computerized research
sites. The majority of materials published by
WestGroup are now available online.
Lexis (lexis.com)
The other premier computerized research
system. First-class collection of primary and
secondary sources.
Versuslaw (versuslaw.com)
Much more affordable than Westlaw and Lexis,
but with a substantially more limited database.
Loislaw (loislaw.com)
One of the more popular alternatives to the
more expensive research sites. Includes its
own online authority validation system.
The two most subscription sites utilized by lawyers
are Westlaw and Lexis. They are the oldest, most
established, and most expensive of computerized
legal research sites. Both have existed since the
nineteen-seventies, well prior to the creation of the
Internet. Today, anyone with Internet access can
subscribe to Westlaw or Lexis. Both include massive
databases consisting of both primary and secondary
sources, online validation systems (Westlaw utilizes
its own innovative KeyCite system while Lexis
employs Shepard’s Online), and multiple levels of
subscriptions. Following is a basic description of the
layout and functions contained in Westlaw.
Part Four: Non-traditional Research and Writing Techniques 247
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§
10.2 QUERY FORMULATION FOR ONLINE RESEARCH
A “query” is an inquiry or question. You will select words and phrases which are unique to
your research problem, then query the computer as to whether any case, or statute,
has contained the same unique words and phrases. If so, there is a good chance the
case you have found is relevant to your research problem.
A.
FIRST, DETERMINE THE KEY TERMS TO YOUR RESEARCH
PROBLEM.
For example, suppose you were to research a matter involving liability
when a child is injured on a swing at a day care center.
The key terms would be:
liable
B.
day care center
injured
child
NEXT, ARE THERE ANY ALTERNATIVES?
While you may be looking for “day care center,” there may be a
relevant opinion that uses the term “preschool” instead. To cover
this possibility, find any possible alternatives for your key terms. In
other words, cartwheel.
Our list now looks like this:
liable
responsible
C.
day care center
preschool
child care center
injured
harmed
hurt
child
juvenile
minor
ARE ANY EXPANDERS OR SPECIAL TREATMENTS NEEDED?
Look at the first key term, liable. As written, the computer will search for only liable,
but will not search for liability. To solve this problem, we can use expanders to find
different forms of the same word. The two most popular expanders are the EXCLAMATION
MARK (!) and the ASTERISK (*).
In this case we simply cut the word to the point where liable and liability are identical.
We then place the “!” after that root, i.e. liab!. Now both versions of the word will be
found.
The “*” is used in a more limited search. For example, hand! would find hand, handicraft,
handyman, etc. If you were just looking for hand, handle or handled, you could use
hand***, limiting the search to the root hand and three (3) more letters.
The “*” may also be used within a word as a place holder to look for alternatives. For
instance, “dr*nk” will look for drink, drank, and drunk. “Dr*nk!” would find drink, drank,
drunk, and drinking.
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Also note if you have any multi-word phrases such as day care center. As written,
the computer would find the phrase:
“The woman shot the man in the center of his abdomen, and apparently did not
care that it was the day before their anniversary.”
To avoid this unwanted search, place the desired phrase in quotation marks. Our list
now looks like this:
liab!
responsib!
D.
“day care center”
“preschool”
“child care center”
injur!
harm**
hurt
child
juvenile
minor
PLACE CONNECTORS BETWEEN THE WORDS.
Westlaw’s most common connectors are:
/s
/p
&
_
=
=
=
=
Same sentence
Same paragraph
and
or (space bar)
Lexis utilizes proximity locators requesting that two terms be found within a specific
amount of words of each other. For instance, “w/15” asks that two terms be found
within 15 words of each other.
First, place “or” (space bar) between your initial key terms and their alternatives, (i.e.
liab! responsib!) Second, choose connectors to be placed between the remaining
terms. Our query now looks like this:
WESTLAW QUERY:
liab! responsib! /p “day care center” “preschool” “child care center” /p injur!
harm** hurt /s child juvenile minor
LEXIS QUERY:
liab! responsib! w/30 “day care center” “preschool” “child care center” w/25
injur! harm** hurt w/10 child juvenile minor
Once the researcher has a valid query or two, it’s time to go online. On the
following pages students will learn the basic functions of these powerful research
sources.
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10.3 LexisNexis: SIGNING ON
LexisNexis is one of the two major online legal research systems. On the following
pages students will be instructed on the basic functions of LexisNexis, often referred to
as simply Lexis.
First, the researcher is assigned an Identification and Password. Go to the website
www.lexis.com. Once the ID and Password have been entered, simply click the “Sign
On” button, or press Enter.
It is possible for the computer to “remember” the sign-on information so you don’t have
to retype it every visit. Simply check the box next to “Remember My Sign On Information.”
Depending on the subscription, it is possible to enter information about the client on
whose behalf the researcher is working. This information may then be printed out or
sent monthly to the firm so the client may be accurately billed for any online research
done on his or her behalf.
The researcher is then taken to the Lexis database screen.
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10.4
LexisNexis: BEGINNING YOUR SEARCH
There are basically two steps to searching on any online research service. Choosing a
database and entering a query (a series of relevant search terms). First, the researcher
must tell the computer where to look. In other words, choose a database.
Federal Authority As you can see in the above diagram, the researcher may
choose to search a specific level of federal court, all federal courts, federal statutes,
or even a combination of all federal and state databases. The researcher should
be aware that the larger the database, the more expensive the per-minute charge.
State Authority Of course, the researcher may be looking for authority in a
specific state’s jurisdiction. Simply click on the state of your choice, or click on the
“View More Sources” link.
Topical Research For a more limited search, the researcher may choose one of
the relevant topics under “Areas of Law - By Topic.” These collect cases as to
specific legal topics from around the country, allowing the researcher to conduct a
national search only as to the topic selected.
Secondary Authority LexisNexis offers an excellent selection of secondary
sources, including Matthew-Bender publications, Restatements of Law, law reviews,
and other valuable secondary sources.
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10.5
LexisNexis: ENTERING YOUR SEARCH QUERY
Once the database has been selected, the researcher is taken to the Search Query page.
The query is typed into the text box, as shown above. The search query is the key to
online research. Notice the following elements on the above page.
The Query Text Box The researcher types in a search query. A query is a group
of terms collected together with devices called “Connectors.” This is the primary
box used on this page. The boxes below serve as aids in creating a query.
Suggest Words & Concepts In the above example, the “Suggest Words and
Concepts” button was selected after the query was typed in. LexisNexis provided
a list of related search terms. This is very helpful when trying to think of optional
terms for a search query.
Restrict Search Using Document Segments While not required, it is possible
to search only in a specific field of an opinion, such as the headnotes or only within
the opinion.
Date Restrictions It is also possible, but not required, to search within a specified
time period.
The query is the key to successful online research.
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10.6
LexisNexis: SEARCH RESULTS PAGE
If the search provides results, any cases that contain the terms from the query will be
provided in chronological order, with the most recent cases listed first. The listed cases
provide the researcher with additional research tools to help both refine and expand the
scope of the research project.
Print Options LexisNexis provides several options for getting a copy of the list,
or any other page being viewed. At the top right hand side of the window you will
see a print option toolbar. The researcher may choose to print the page, download
the page, fax the page, or email the page. The Fast Print feature allows the
subscriber to set up a standard print portfolio. Be aware that there subscribers
are charged for all of the above services. The cost depends on the subscription,
but it is generally more cost effective to print the results page and look the cases
up in the law books. The “Text Only” link displays the page without graphics.
Case Overview Each case will provide a link to open the full opinion, followed by
an overview of the case. The overview will allow the researcher to quickly determine
the relevance of the opinion to the research project.
Core Terms Lexis provides terms from the opinion to possibly modify the query.
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10.7 LexisNexis: QUERY RESULTS PAGE VALIDATION
By reading the overview of the opinion, the researcher can quickly determine which
cases he or she wants to view. When a case is chosen to view, the researcher may click
on the citation link to open the opinion, or simply check the box to the left of each
citation link. In addition, LexisNexis provides instant Shepard’s references. The signals
indicate how other cases have treated to citation. The legend for the signals can always
be found at the bottom of the page being viewed. The Shepard’s signals are:
Negative Treatment This red octagon indicates that the linked case has
been treated in a negative fashion by later authority. In other words, beware!
Caution Treatment This yellow triangle indicates that some authority may
have treated the linked case negatively. The treating authority may be from a
different jurisdiction or lower court, which would not invalidate the linked case.
Positive Treatment
The green diamond indicates other authority has
positively treated the linked case.
Citing References The blue circled A indicates courts cited the case neutrally.
Citation Help The blue circled I indicates other sources, such as law reviews.
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10.8 LexisNexis: OPENING A CASE IN THE RESULTS PAGE
The researcher may simply click on the citation link to open that case. As shown above,
this page provides the full citation, headnotes, and full court opinion. In addition,
Lexis allows the researcher to quickly determine the relevance and outcome of the case
through its Case Summary, which includes:
Prior History LexisNexis provides several options for getting a copy of the list of
found cases, or any other page being viewed. At the top right hand side of the
window you will see a print option tool that displays the page without graphics.
Disposition Each case will provide a link to open the full opinion, followed by an
overview of the case. The overview will allow the researcher to quickly determine
the relevance of the opinion to the research project.
Procedural Posture Lexis provides terms from the opinion to possibly modify
the query.
Overview Each case will provide a link to open the full opinion, followed by an
overview of the case. The overview will allow the researcher to quickly determine
the relevance of the opinion to the research project.
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10.9
LexisNexis: SHEPARDIZING A CASE
Shepardizing a case in LexisNexis is very simple. Simply click on the Shepard’s signal
next to the citation, and the case will be Shepardized. Above is an example from a case
that has been Shepardized. Shepard’s will provide the following tools:
Shepard’s Summary The Summary includes:
- Appellate History, if there is any. In other words, if the case being
Shepardized has been appealed, those decisions will be accounted for.
- Citing References, including a breakdown of how those references
treated the cited case.
Prior History If the case being Shepardized has was appealed from an earlier
published opinion, that prior case will be cited.
Citing Decisions Any cases that are mentioning, in other words citing, the
Shepardized case will be listed, with indications of how those cases “treated” the
Shepardized case.
To view a citing decision, just click on the citation, which is linked to that opinion. Expanding
the scope of your research and locating additional authority doesn’t get much easier
than this. But remember, your client is being charged every second you are online!
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10.10
LexisNexis: TABS- RESEARCH TASKS
LexisNexis is loaded with research tools. The tabs on the top left side of the page
provide the most commonly utilized aids. The first of these tools is the Research Tasks
Page.
This page provides a list of legal topics. If the researcher clicks on a topic, a search page
will appear enabling a search query to be entered. The page also provides a list of
sources specific to that topic. The researcher selects the boxes next to the desired
sources, enters the search query, then clicks on the Search button.
The results will include any relevant authority found in the selected sources. This is a
very powerful tool if the researcher is absolutely certain as to the general topic.
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10.11
LexisNexis: TABS- SEARCH ADVISOR
The Search Advisor allows the researcher to focus the search to a very specific point
with just a few clicks. For instance, in the above example, the first topic chosen from
the Search Advisor page was Torts. The Torts page provided several options, including
the topic of Negligence. Again, the Negligence page provided several options. The topic
chosen on that page was Standards of Care, which is how the researcher was led to
the insert above. We can continue to refine the search (choosing either Reasonable
Care or Special Care), or we can enter our query and perform a search.
Notice that at any stage, the researcher is provided with two options. The researcher
may enter the query at any point, or may continue to narrow the search more and
more. This is a powerful tool, and may also assist in word association ideas.
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10.12 LexisNexis: TABS- GET A DOCUMENT
If the researcher already has a citation to a case, statute, court rule, or other authority,
it is very easy to look the document up on Lexis.
Click the tab titled Get a Document. Type the citation in the text box. Click the Get
button, and the document will be located and displayed.
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10.13 LexisNexis: TABS- SHEPARD’S
If a researcher has a citation that she or he needs to Shepardize, simply click on the
Shepard’s Tab. The researcher may choose to Shepardize the citation in two ways.
The researcher may Shepardize to Validate. This means that only subsequent, or later,
authority will be presented to the researcher, helping to determine whether any later
cases or statutes have affected the validity of the document being Shepardized.
The researcher may Shepardize to Research. This is the full Shepard’s search, resulting
in a listing of all authorities that have referred to the cited case.
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Matthew Bender: Forms
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10.14
Restatements of Law
LexisNexis: SECONDARY SOURCES
For a paralegal, one of the most exciting aspects of LexisNexis are the multitude of
secondary sources provided online, including:
Matthew Bender Simply the best form books available. And of course, no law
library would be able to carry all the form books available online at Lexis.
Restatements The most highly respected form of secondary authority,
Restatements of the Law are legal treatises. The researcher can choose to search
a single set (such as Restatement of Torts) or may search all Restatements
combined.
American Law Reports A powerful research tool, available for searching online.
Encyclopedias American Jurisprudence, 2d and many state encyclopedias are
available, as well.
Other Sources Lexis has dozens of additional sources, from law reviews and
journals to newspapers and magazines.
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10.15 WESTLAW: SIGNING ON
Upon subscribing to Westlaw, the researcher is assigned a Client Identification and
Password. Once entered, simply click on “Go” or press Enter.
It is possible for the computer to “remember” the password on your computer so you
don’t have to retype it every visit. Simply check the box next to “Save this password.”
Depending on the subscription, it is possible to enter information about the client on
whose behalf the researcher is working. This information may then be printed out or
sent monthly to the firm so the client may be accurately billed for any online research
done on his or her behalf.
One especially useful feature of Westlaw is called “Tracking.” It is possible to revisit or
continue with previous searches that the subscriber has conducted. This can save much
time, and of course, money.
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10.16
WESTLAW:
SEARCHING
The “Welcome to Westlaw” screen will provide three shortcuts:
Find If you have a citation, or even the title to a case without a citation, simply fill
in the blank with that information a click on “Go.” Westlaw will take you directly to
the citation.
KeyCite The KeyCite tool has two primary functions. It will validate the authority,
and it will broaden the scope of research by providing related authorities. Simply
type a citation in the blank box and click on “Go.”
Search The researcher must choose a database in which to search. For specific
state law, type the two state abbreviation followed by either a “-cs” (for case law)
or “-st” (for statutes).
Example: NY-CS would search for New York state cases. For federal databases,
type “CTA” and the desired circuit number. Example: CTA4 would search within
the 4th Federal Circuit. For U.S. Supreme Court cases, type SCT. You can also
type “allstates” for all state databases, or “allfeds” for all federal databases. Click
on the Database Wizard link provided below the Search tool for more databases.
Once a database is selected, click “Go” to enter a search query.
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10.17 WESTLAW: ENTERING YOUR QUERY
The search query is the key to online research. Notice the four boxes on the above page.
Terms and Connectors box The researcher types in a search query. A query is
a group of terms collected together with devices called “Connectors.” This is the
primary box used on this page. The boxes below serve as aids in creating a query.
Connectors/Expanders box This box provides a selection of devices to connect
various terms or to expand individual terms.
Fields box While not required, it is possible to search only in a specific field of an
opinion, such as the headnotes or only within the opinion.
Dates box It is also possible, but not required, to search within a specified time
period.
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Results Frame
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Main Frame
10.18 WESTLAW: SEARCH RESULTS
If Westlaw locates any cases responding to your query, those cases will appear in
chronological order, the most recent appearing first. The search results will appear within
the results frame on the lower left part of the page. The case will appear in the main
frame on the right. When viewing cases, Westlaw and Lexis provide the following
functions:
Term and Page Modes: If you press Enter, or click on the Term button below
the main frame, the computer will advance to the first term from your query that
appears within the document. To advance a page at a time, scroll down within
the document.
Document Buttons: Click on the Doc button below the main frame to view the
next document or the previous document.
Print Doc: Click on the Print Doc button below the main frame to obtain a hard
copy of that document. Be aware that under some subscriptions, there may be
additional charges for printing documents. Also, time spent online during printing
may be billed.
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10.19
WESTLAW: VALIDATION RESEARCH
Validating Authority:
Westlaw and Lexis use different online validators.
with the KeyCite system. Lexis utilizes Shepard’s.
Westlaw will validate an authority
There are two ways to utilize the KeyCite function in Westlaw:
KeyCite Box on the Welcome Screen
In Westlaw, the researcher may type in a known citation in the KeyCite box on
the “Welcome to Westlaw” page after initially signing in.
Click on the KeyCite Tab
The researcher may also at any time click on the KeyCite tab towards the top of
the page. The above page will appear. The researcher simply fills in the citation
that needs validating, and clicks Enter.
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10.20
WESTLAW: VALIDATION RESULTS
Once again, Westlaw will provide relevant citations in the results frame on the bottom
left corner of the page, with the case itself being displayed in the main frame on the
right. If the researcher clicks on a case in the results frame, that case will appear in the
main frame. In the above example, the history citations are shown first. If the researcher
was to page down within the “results frame” she or he would eventually find the treatment
citations as well.
KeyCite Flags Notice the flag next to the title in the case above. It that the case
may have been viewed negatively by other authorities.
Yellow Flags (possibly affecting the cited case)
In Westlaw, a yellow flag cautions that other authority may have treated your
case negatively. The researcher must click on the flag to determine how the citing
case affects the cited case.
Red Flags (invalidates the cited case)
A red flag indicates the authority being flagged is no longer valid. Click on any flag
to find the authorities that have negatively affected that case.
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§ 10.21
ELECTRONIC V. LAW LIBRARY RESEARCH
A common, and reasonable, question is often asked. If so much
can be found online, why should a researcher even use the law
library? There are at least two reasons.
Education Research
When a paralegal researches electronically, the paralegal is
taken from the issue straight to the law. The case itself
provides little background information. The court assumes
the reader is informed as to the issues presented. This
sounds efficient, but an important step is missing. When a
paralegal researches within the law library, scouring the
indexes and secondary sources, they are being educated as
to the fundamental aspects of the issue. A paralegal basically
is getting a mini-law school education on whatever topic is
being researched. While both Lexis and Westlaw are providing
more and more secondary information online, to research
secondary sources in this manner is not cost-effective. If
you utilize the secondary sources in the law library, you may
wind up knowing as much, or more, about that topic than the
average attorney.
The Value of Browsing
When a paralegal researches online, specific terms and
phrases must be entered. If the paralegal is in a law library,
the index itself provides ideas and avenues for broadening
research. The value of browsing can not be quantified. It is
more art than science. Even if others in your firm only utilize
the electronic research sources, you can be a more well
rounded researcher by getting into the books.
Exercise
Using your client’s case, do at least one of the following:
1.
2.
3.
4.
Go online to westlaw.com and sign up for a
free trial.
Go online to lexis1.com and use the free
limited search (if available)
Go to versuslaw.com and subscribe.
Versuslaw.com has excellent student
rates for paralegals.
Go to findlaw.com and research your matter.
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chapter 11
The Desperate Researcher
§ 11.1
“I CAN’T FIND ANYTHING!”
It’s going to happen. You get a research assignment
from your attorney. You check all the traditional sources
for research. You research in American Jurisprudence,
2d, American Law Reports, Corpus Juris Secundum, West
Digests, statutes. You have cartwheeled the issue till
you’re out of ideas. But you find nothing. The frustration
mounts! You now epitomize the desperate researcher.
Some of the resources found in this chapter are
enhancements of previously discussed sources. Some
are presented here for the first time. But they all have
one thing in common: they are not used by the typical
paralegal conducting research. Some are not used by
attorneys either because they do not have access to
the materials or they are simply unfamiliar with these
books and techniques. That means that if you utilize
these tools, you can have an advantage over other
researchers. The techniques provided within this chapter:
Common Research Roadblocks
Some of the typical frustrations that researchers
face, with suggestions for overcoming research
obstacles.
Advanced Techniques in Traditional Sources
Reviewing several previously discussed research
tools, then taking them to the next level.
General Digests
You are familiar with West Digests by now, but
this publication, which updates the Decennials, is
accessed differently than any other digest.
Restatements of the Law
One of the most respected forms of secondary
authority, Restatements are legal treatises. These
books are more commonly used by attorneys than
paralegals. They are not as intimidating as they
sound.
Legal Periodical Research
There are thousands of periodicals. It would be
impossible to research them individually, so
researchers use one of the indexes to legal
periodicals.
Assignments
Students will use their research assignments to
perform the following
exercises. Students
should start in various
exercises, but all exercises must be completed. Those exercises
include:
General Digests
Restatements
Legal Periodicals
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11.2
COMMON RESEARCH ROADBLOCKS
Sometimes a researcher either gets stuck, or is asked to
find something out of the ordinary. Following are several
examples of potential problems that may arise for the
legal researcher, and some suggestions of possible
solutions.
I know the name of a case. How do I find the
full citation?
Shepard’s Case Name Citators
Every set of Shepard’s has a Case Name Citator
which lists all the cases found in that specific set of
Shepard’s. While your library may not contain all of
the Case Name Citators, it probably, at the least,
has the Case Name Citator for your region, state,
and the federal citators. The case may be found by
looking up either the plaintiff or defendant.
Digest Table of Cases
Every set of West Digests has a volume or volumes
with a Table of Cases. These are kept usually at
the end of the set of digests. Again, the case may
be researched using the plaintiff or defendant.
My attorney knows the name of a party in a
case, but is unsure of the title of the case. Can I
find it with only the name of a party?
Digest Plaintiff/Defendant Table
As with the Table of Cases, the Plaintiff/Defendant
table is kept at the end of the set of digests. After
looking up the name of a party, the book provides
the full cite to any cases that party was involved in
that were contained within that specific set of
digests.
Call the Court
If you know the court from which the opinion was
rendered, call the court. They will probably have
the case listed by docket number, case name, and
names of all parties in their computers.
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I know the name of a recent case but can’t
find it.
Reporter Advance Sheets
West Reporters all have advance sheets that
publish cases in advance of the hardbound
volumes. Each of these soft bound volumes has
a table of cases, and a short digest for materials
within that soft bound advance sheet. Once in a
while, these resources can be very helpful.
Internet
If you have access to Westlaw or Lexis, these
computerized research systems would have the
case. It may be online at a free service as well,
especially if the case is new.
Loose-leaf Services
Check out any loose-leaf services that may apply.
For instance, if the matter your client is involved
in is bankruptcy, find the Bankruptcy Reporter by
Bureau of National Affairs (BNA).
Call the Court
Again, call the court. They will usually provide
the case for free or at most for a small fee.
Call the Law Library
Some law libraries are remarkably helpful to
researchers. If the library in your area does not
have the authority you are seeking, contact a
publicly funded law library, such as one affiliated
with your state’s highest court. While they won’t
do the research for you, if you have the citation
to a case, statute, or other authority, they will
most likely copy it and fax it to you.
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I have just one or two cases, and can’t find
anything else. What should I do?
First, the Obvious
Make sure you have checked all your regular
resources, including Shepardizing the case.
Authority within Authority
If you have even one case, you have more than you
think. That case must have relied on authority, so
check for cases and statutes within the opinion
itself. Also check the headnotes for Key Numbers
that will lead you to digests.
Statutory Research Tools
Check any statutes you have found. They most
likely contain research tools, such as references to
Key Numbers or cases and other statutes.
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11.3 ADVANCED TECHNIQUES IN
TRADITIONAL SOURCES
The traditional resources will always account for most of
your legal research. Here we will quickly revisit these
resources. First, each will be quickly reviewed, and then
advanced techniques in each will be noted. Some of these
techniques have been previously mentioned, but are
discussed here again for reinforcement.
§ 11.4
REVIEW: AMERICAN JURISPRUDENCE
This legal encyclopedia provides commentary about almost
every area of law. The footnotes to the commentary provide
references to additional research materials. The commentary
is considered secondary authority, since it is not law. Am.
Jur. 2d is published by Lawyer’s Coop., so it is part of the
Total Client Service Library research system. When
researching in Am .Jur. 2d, begin in the Am. Jur. 2d General
Index, which will provide you with a topic and section
number leading to the Am. Jur. 2d Main Volumes, which will
finally, through the footnotes, lead to additional authority.
Advanced Techniques for Am. Jur. 2d
As mentioned above, begin in the General Index when
researching in Am. Jur. 2d. But there is another index
that is often ignored. More accurately, there are
hundreds of indexes that are ignored. In the back of
most volumes of Am. Jur. 2d is an index called the
Volume Index or Title Index, depending on the age
of the set in which you are researching. These Volume
Indexes are only for the topics contained in that
specific volume. If there are multiple topics within
the volume, there will be multiple Volume Indexes at
the back of the volume. A broad topic such as
Negligence takes up multiple volumes. In such cases,
the index will always be found in the back of the last
volume for the Topic. The value of the Volume Index
is that it is a many times as long as the same material
covered in the General Index. However, only utilize
this tool after checking the General Index.
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11.5 REVIEW:
CORPUS JURIS SECUNDUM
Corpus Juris Secundum is also a legal encyclopedia.
It is very similar in nature to Am. Jur. 2d, but
where Am. Jur. 2d is particularly good at referring
the researcher to practice aides, such as form
books, C.J.S. concentrates on leading the
researcher to primary sources, such as cases,
statutes, and administrative regulations. Also,
since C.J.S. is by West, it will often provide relevant
Key Topics and Numbers. When researching in
C.J.S., begin in the C.J.S. General Index, which
will provide a topic and section number to the
Main Volumes of C.J.S., which will, through the
footnotes, refer to additional authority.
Advanced Techniques for C.J.S.
West identifies relevant Key Numbers at
the beginning of most sections in C.J.S. So
if you find a relevant commentary in C.J.S.,
look for any relevant Key Topics and Numbers
that will lead you to West Digests.
§
11.6 REVIEW: WEST DIGESTS
West Digests, such as the Pacific Digest, the
Federal Digest, or the Decennial Digests, act as
indexes to reporters. For instance, the Pacific
Digest acts as an index to the Pacific Digest. The
Federal Digest acts as an index to cases in federal
case books, such as the Federal Reporter and
Federal Supplement. The Decennial Digests, which
collect state and federal material from appellate
and supreme courts, act as a giant index to all
case law. Digests are a collection of headnotes
arranged in topical order, and are therefore nonauthority. When beginning research in a digest,
begin in the Descriptive Word Index, which will
provide a Key Topic and Number for the Main
Volumes, which will lead the researcher to
additional authority, specifically cases.
274 Essential Skills for Paralegals: Volume II
Advanced Techniques for West Digests
There are two techniques presented here for your
consideration. One is new, and one has always
been available, but is often overlooked. We will look
at this last technique first.
As mentioned previously, digests are merely a
collection of headnotes arranged in topical order.
And while the goal of a digest is to act as an index
to reporters, and thereby lead the researcher to case
law, there is information in digests that may lead
the researcher to relevant statutory authority. At
the end of any headnote, West will provide any
statutory authority that the court relied upon in ruling
on the issue being digested. In other words, West
will provide direct reference not only to cases, but
also to statutes and constitutional authority.
Another technique involves the index to the digest.
Researching is limited by how good the index is.
Some are better than others. The best index is the
Index to the Decennial Digest. And since the Key
Topic and Numbers found in any index can be utilized
in any West Digest main volume, the number found
in the Decennial Digest Index may lead the researcher
to the index of his or her choice. So, utilize the
Decennial Digest Index even when researching in
the Pacific Digest.
§
11.7 REVIEW: AMERICAN LAW REPORTS
A.L.R. is an annotated report, which means that it reports
selected court cases, then discusses the significant aspects
of those cases. It is published by Lawyer’s Cooperative,
and is part of the Total Client Service Library. A.L.R. has
five basic series, and A.L.R. Federal, which, obviously,
annotates only federal cases. When researching in A.L.R.,
begin in the A.L.R. Index: 2d, 3d, 4th, 5th and Federal,
which will lead to a specific main volume and page number,
which will provide commentary and refer to additional
authority.
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Advanced Techniques for A.L.R.
Just take a look at A.L.R. 5th and you will see the
differences. The annotation always begins with an
introductory page. The cases on which the
annotations are based are now collected in the back
of the book. The Total Client Service Library, which
leads the researcher to additional research sources,
is greatly expanded. The Table of Jurisdictions
Represented is incredibly improved, providing much
more opportunity to find primary authority within your
jurisdiction. Even the type size is considerably larger.
But of all the changes, there are two new tools that
make A.L.R. an even more powerful research tool.
First, A.L.R. 5th now includes sample computer
queries. The key words that relate to the topic in
the annotation are provided for the researcher. Now,
even if you don’t have access to Westlaw or Lexis,
this tool can be very useful as a “cartwheeling” tool.
Review the terms provided in the query for possible
researching within indexes.
Second, A.L.R. 5th now includes references to the
Key Number System by West Publishing. (Remember,
West recently purchased Lawyer’s Coop., which
publishes A.L.R..) There is even a separate volume
that provides nothing but Key Numbers that refer
the researcher to relevant annotations.
A.L.R. not only provides these new services for the
5th series, but the pocket parts for A.L.R. 4th provide
the same information as well!
276 Essential Skills for Paralegals: Volume II
ASSIGNMENT
Locate the following information in the appropriate law books:
1. Am.Jur.2d
First, find the general topic of privilege in the Am. Jur. 2d
General Index. Then locate the main volume containing the
topic of privileges. Compare the indexes.
Which is more thorough?
Are there any major differences between the two?
2. C.J.S.
Find any main volume of C.J.S., and look up a topic of your
choice.
Can you find any references to headnotes? If yes, where do
they occur?
3. Digests
Locate a Decennial Digest Descriptive Word Index, then pull
out the Descriptive Word Index to your regional digest, such
as the Pacific Digest. Find the topic of Privileges.
Which index provides more topical references?
4. A.L.R.
Pull out a volume of A.L.R. 5th and A.L.R. 4th. Locate the
beginning of an annotation in both, and set them side by side.
What are the differences?
Now locate the pocket part for A.L.R. 4th. Does it provide
anything besides the typical updates to the annotations?
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§
11.8 THE GENERAL DIGEST
To understand the General Digest, we must first review the
three sets of books that make up the American Digest System.
The American Digest System
The Century Digest
Digested materials of very old case law, from
the 1600s to 1896. The Century Digest is usually
only consulted for issues involving very old legal
issues, such as judicial powers.
The Decennial Digest
You should be familiar with this set of books.
The Decennial Digest collects headnotes from
state and federal cases over ten year periods
beginning in 1896. They are incredibly
comprehensive. (Beginning in the 1980s, the
Decennial Digest began being published in two
segments, “Part One” and “Part Two” five years
apart.) If you check Decennial Digests, you’ll
notice that they have no pocket parts. The job
of updating the Decennials belongs to, you
guessed it, the General Digest.
The General Digest
Periodically, after a Decennial Digest is
published, West sends out volumes of the
General Digest. This volume acts as a
hardbound supplement to the entire set of the
most recent Decennial Digests.
While most Digests are arranged by topics, the
General Digest must cover all topics, A to Z,
within each individual volume. Over the period
of a year, West will send around ten or twelve
volumes of the General Digest. Over the period
of five years, sixty or so volumes will have
accumulated. And since each volume contains
updates, A to Z, for the entire Decennial, doesn’t
this mean the researcher must check each
individual volume?
278 Essential Skills for Paralegals: Volume II
Fortunately, no! Every tenth volume
of the General Digest has a Key
Number Table. The researcher should
look up the Key Topic and Number
being researched. The Table will
inform the reader which, of the
previous ten volumes, has material
relevant to that Key Number. So, a
good researcher will check Volume 10,
20, 30, and so forth, depending on
how many volumes there are.
Not many researchers utilize this tool.
If you use it, you can be much more
confident that you have researched
the most up to date information
available in the law library!
ASSIGNMENT
You have already done the majority of your research.
You will want to make sure you have found the most
relevant cases on the matter.
Returning to one of the cases you have previously
found, pick at least one relevant Key Topic and
Number (found in the headnotes). Research that
Key Number in the General Digest.
For each of the Key Numbers provided, begin in
volume 10 of the General Digest. Locate the Table
of Key Numbers. Check the Key Number you have
been assigned. After locating your Key Number in
the Table, note which volumes will you want to check.
Then check every 10th volume, and all volumes after
the last “10th” volume. (For instance, if there are
53 volumes, check volume 10, 20, 30, 40, 50, 51, 52,
and volume 53.)
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§
11.9 RESTATEMENTS OF THE LAW
Restatements of the Law are a series of individual
treatises on selected areas of the law and are
published by American Law Institute (A.L.I.).
Although considered secondary authority, they are
very highly regarded by both the court and attorneys.
One set of Restatements may differ slightly in
structure from another. Yet, there will always be
the following three elements to every set:
The Index
Every set of Restatements will have an index. The
problem is, sometimes the index is in the last set
of the main volumes. Sometimes it is broken up
into separate indexes for each main volume. The
researcher must simply be flexible. But always start
in the index.
The Main Volumes
These volumes contain the commentary regarding
the topic researched. Some sets have a single main
volume. Some sets have multiple main volumes.
Typically, Restatements starts with the basics. In
other words, section 1 to Restatements of Contracts
will define what a contract is. Section 2 might define
Obligor. Section 3 might define Obligee. By the
last section, Restatements will have covered most
aspects of the topic. Check the pocket parts.
The Appendix
After the researcher locates a relevant section
number within the main volumes, simply look up
the corresponding section number in any Appendix
the set may have. The Appendix contains references
to additional authority, such as cases or statutes.
Basically, the Appendix acts as a hardbound
collection of footnotes. Again, sometimes there is
a single volume to the Appendix, and sometimes
there are multiple volumes. Be sure to research in
280 Essential Skills for Paralegals: Volume II
all appropriate Appendixes. Always check the pocket
parts.
The method used to research Restatements:
INDEX
1. First, the researcher locates the main volumes
of Restatements. These are the volumes with
only the section numbers on the spine (not
Appendix). In the last main volume, Restatements
usually provides an index for that series.
2. The index will provide a section number. The
researcher should locate the appropriate point
referred to in the main volume.
MAIN VOLUMES
The point in the main volume to which the index
has led the researcher restates the law, then
discusses the law in depth. The main volume
may include:
Comments, which specifically discuss the area
of law being addressed
Illustrations, which are examples of the point
being made by the commentary
Reporter’s Notes, which lead the researcher
to additional secondary authority
Citations to previous editions of
Restatements, which may be relevant to
the specific issue being addressed.
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After the researcher has found relevant commentary
in the main volumes, he or she may want to discover
whether the material has been updated. The
researcher would also like references to other
relevant forms of authority. Restatements provides
this information not in the main volumes but in the
Appendix. The researcher needs to locate the volume
that has “Appendix” on the spine of the book, then
research the same Restatement section number that
was researched in the main volume.
Sometimes Restatements may have multiple appendixes. In
this case, the researcher must check each volume that may
provide material for the section number being researched.
Flexibility
Above all, when utilizing Restatements, the researcher must be
flexible.
Sometimes the index is not where you expect it to be.
Sometimes there are multiple indexes, one for each
individual volume.
Sometimes there is no appendix to a specific series, and
that set contains footnotes instead of an appendix.
Sometimes there are separate volumes for separate topical
areas within a single set of Restatements. For instance,
in Restatements of Property, Landlord/Tenant issues are
dealt with in their own volumes.
The information within Restatements is so valuable that it is
worth the effort! Of course, the researcher must also check the
pocket part in each volume researched, including appendixes.
282 Essential Skills for Paralegals: Volume II
§
11.10 EXAMPLE OF RESTATEMENTS OF LAW
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§
11.11
RESTATEMENTS EXERCISE
Research the following questions in Restatements Second.
Note that not all libraries contain all sets of Restatements.
1.
Restatement (Second) of Trusts
Your attorney would like you to find a definition of a
“Charitable Trust.” Also check the appendix to see if
there are any references to primary authority. If there
are, provide at least one.
2.
Restatement (Second) of Real Property
(Landlord and Tenant)
Can you find a Restatement as to the responsibility of
a landlord to disclose existing dangerous conditions
of a leased or rented property? If yes, where in this
set will you find references to primary authority?
3.
Restatement (Second) of Conflict of Laws
If two states have conflicting laws as to what
constitutes a valid marriage, which state law will take
precedence? Can you find at least one reference to
primary authority?
4.
Restatement (Second) of Agency
Your attorney wants to find a definition of the “Fellow
Servant Rule.” Locate a definition in Restatements,
and try to cite at least one example of primary
authority.
284 Essential Skills for Paralegals: Volume II
§
11.12 LEGAL PERIODICALS
There are literally hundreds of legal periodicals.
There is no way, of course, that a researcher would
be able to search each periodical for relevant
material. And even if the researcher had the time
and energy, only a few periodicals have indexes.
The researcher must rely on one of two major
indexes to legal periodicals. The are:
The Index to Legal Periodicals (I.L.P.)
The Current Law Index (C.L.I.)
Since both utilize the same basic system, and since
the Current Law Index is a bit more current, we will
concentrate on that index here.
The Current Law Index is actually very easy to
use, but the researcher must be thorough. When
beginning research in CLI, the researcher must have
the following:
The name of the author, the title of a
specific article, or the general subject
matter
A specific year or period of years in
which the researcher wants to check
for periodicals
The researcher will sometimes have either an author
or title of an article that needs to be researched.
For instance, any articles by an expert witness
expected to testify. It is more common for the
researcher to have a topic or general subject which
needs to be researched.
If the researcher is researching a general subject,
she or he must locate the part of CLI that covers
Subject Matter. If the researcher knows the author
of an article, or the title of an article, she or he
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must located the part of CLI that covers Authors and
Titles. In addition to the above information, the
researcher must identify a year in which to research,
since the material is collected chronologically.
Once the year is identified, the process is really very
simple, except that older volumes of CLI collect all
information in a single volume, and more recent
volumes separate Subject Matter from Author/Title
indexed material in a separate volume.
ASSIGNMENT
Using the Current Law Index or Index to Legal
Periodicals, research the following articles. Does
your law library have them?
1. Your attorney remembers reading an article
on the subject of sexual harassment by an
author named Jenero or Generro, or something
to that effect. He thinks it was between 1995
and 1998. Can you find such an article?
2. Your attorney is an oil and gas lawyer. The
opposing party plans to call Judith Matlock as
an expert witness for the opposing party in a
law suit. You want to find out whether Ms.
Matlock has written any articles that might be
relevant to oil and gas litigation in the past
five years.
3. Your attorney thinks he remembers an article
on religious broadcasting that was published
around five years ago. Can you find it?
286 Essential Skills for Paralegals: Volume II
chapter 12
Non-traditional Writing Techniques
§
12.1 SYNTHESIZING AUTHORITY
§
12.2 SYNTHESIZING PRIMARY
AND SECONDARY AUTHORITY
To synthesize authority is to combine multiple forms of authority
in an analysis. As discussed previously, comparing and
distinguishing cases, as well as applying statutes or rules,
may serve a paralegal, or attorney, very well. In fact, many
attorneys and paralegals utilize only those tools. Synthesizing
authority is another writing strategy that may strengthen an
argument. There are at least two methods an author may
want to use to synthesize authority; synthesizing secondary
and primary authority, and synthesizing cases and statutes.
Since secondary authority is an excellent source of definitions,
it is a good strategy to use secondary authority to define a
critical term. This will then lead into an application of a case
or statute that utilizes the previously defined term. Following
is an example of synthesized secondary and primary authority:
Analyzing Statutes and Rules: Review
When relying on statutes and rules, the author should break
the rules into elements in his or her notes. Then in the
memorandum, key elements are discussed. For instance, let’s
assume the following statute is being analyzed:
Statute 123.010
Any person who knowingly and intentionally takes
the life of another person is guilty of murder.
Arguing That a Statute or Rule Applies
If the author wants to establish the applicability of a
statute or rule, each element of the rule must be shown
to apply. For instance, if the statute above was being
applied, the author might state, “The defendant hit the
victim on the head with a hammer. The defendant was
not drunk or on drugs at the time of the murder, and
stated he was simply upset with the victim. He certainly
knew that the effects of a hammer hitting a person’s
head could be fatal, and the striking of the hammer was
certainly not an accident. The defendant is therefore
guilty of murder.”
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Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through.
Jonathan Swift, 1667-1745
Arguing That a Statute or Rule Does Not Apply
If the author wants to argue that a rule does not
apply, the author must demonstrate that at least
one element of the rule does not apply. If even a
single element does not apply, the entire rule is
invalid as to that specific case. For instance, if the
above statute was being applied, the author might
argue, “The cited rule states that the person
accused of the crime must ‘knowingly and
intentionally’ commit the act. The defendant in
this case was in a fit of rage because he was just
informed that the victim was having an affair with
the defendant’s wife. In that blind rage, the
defendant picked up the nearest object, which
happened to be the hammer, and flung it at the
victim’s chest. The victim ducked, bringing the
trajectory of the hammer into contact with the
victim’s head. There was no therefore no ‘intention’
on behalf of the defendant to commit murder.”
Legal Junk Food
Eighteen-year-old Charles
A. Meriweather broke into a
home
in
Northwest
Baltimore on the night of
Nov. 22-23, 1978, raped the
woman who lived there, and
then 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 heck,” and he
ordered her to write out a
check for $30. Then he
changed his mind and upped
it to $50. “Who shall I make
it out to?” asked the
woman, a 34-year-old
government employee.
“Charles A. Meriweather,”
said Charles A. Meriweather,
adding, “It better not bounce
or I’ll be back.” Meriweather
was arrested several hours
later.
Analyzing Secondary Authority
While citing secondary authority is allowed, one almost
always wants to rely on primary authority. However,
there are times when secondary authority may be cited,
usually in combination with primary authority. Secondary
authority is cited for one of the following purposes:
Definitions
Dictionaries and legal treatises (such as
Restatements) are excellent sources of definitions.
For instance, the author may want to define the
term “gross negligence” in a legal memorandum.
General Discussion of Court Position
Some authorities, such as A.L.R. and Restatements,
do an excellent job of relating the general attitude
of courts regarding a specific legal issue. They
may also explain the history of how a legal “train
of thought” came about.
Again, attempt to only cite secondary authority in
combination with primary authority. In other words,
synthesize the authorities!
288 Essential Skills for Paralegals: Volume II
A liberal is a man who will give away everything he doesn’t own.
Frank Dane
§
1.
12.3 EXAMPLE USING PRIMARY AND SECONDARY
May the defendant prevent his spouse from testifying as to private conversations
made with the spouse regarding a bank robbery?
Generally, courts have ruled that one spouse may not be forced to testify against another
spouse regarding private communications. However, there are exceptions to the rule.
Restatements (Second) of Torts provides a clear definition of the spousal communications
privilege, and discusses how it applies.
Privileges exist under the theory of law to protect certain private communication
that society deems worthy of an extremely high degree of confidence, no matter
how relevant the information might be.
...Society places great value upon the marital unit. The integrity of the marital
unit would be severely strained if both spouses knew that even the most private
conversations between them could, at any time, be forcibly exposed to public
light. Therefore, in the interest of marital harmony, the spousal communications
privilege may be asserted by a party to a legal action to refuse to testify, or to
prevent the defendant’s spouse from testifying, regarding private communications
made during the course of the marriage.
Restatements (Second) of Torts §412
In Smith v. Jones, 142 F.2d 1109 (10th Cir. 1983), the defendant was charged with robbery of
a jewelry store. After the robbery, the plaintiff gave several of the items stolen to his wife,
who reportedly wore them regularly after that event. According to one witness, the wife
actually bragged that her husband stole one of the items. The prosecution offered the wife
immunity from prosecution for any criminal acts related to the matter, and wanted her to
testify. The defendant objected, claiming the spousal communications privilege. The trial
court allowed the testimony, ruling that:
The spousal communications privilege was originally established to protect the
sanctity and harmony of the marriage. Where the conduct of both parties is
such that there cannot be a reasonable expectation of sanctity and harmony
within the marital relationship, there by definition can be no privilege. Such
conduct exists in this case, making the privilege nonexistent.
The above authorities apply to the instant case. In both cases a defendant was charged with
a criminal act. The wife in both cases was not involved in the original criminal act, but did
benefit from the proceeds of the act. Smith establishes that such conduct renders the
spousal communications privilege void since it is in violation of the concept of “marital harmony,”
which is the foundation of the privilege. 145 F.2d at 1113. Therefore, the wife in the
defendant’s case at bar should be required to testify.
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When smashing monuments, save the pedestals—they always come in handy.
Stanislaw Jerzy Lee 1909-1966
§
12.4 SYNTHESIZING
STATUTES AND CASES
Statutory authority states the law. Case law interprets
the statute. That combination can make a powerful
legal argument. Quote a relevant statute or rule,
then analyze a case that has applied that statute to
a fact situation similar to your client’s.
§
1.
12.5 EXAMPLE USING A STATUTE AND A CASE
May the defendant prevent his spouse from testifying as to private
conversations made with the spouse regarding a bank robbery?
Statutory authority has addressed the issue of the marital, or spousal,
communications privilege. Nev. Rev. Stat. 445.150 states as follows:
“Any private communication between a husband and wife not for the
express purpose of perpetrating, aiding, or abetting a criminal offense
is privileged.”
Joseph v. James, 278 Nev. 749, 464 P.2d 892 (1979) involves a defendant
who was charged with murder. After the murder, the defendant’s spouse
allegedly helped cover up the crime, including burning bloody clothes
and disposing of the gun used in the commission of the crime. The trial
court ruled that such conduct was not protected by the privilege, and
that the wife, who had been given immunity, could be forced to testify.
The Nevada Supreme Court upheld the trial court’s decision, and held:
In the case at bar, the determination that must be made
is whether the defendant’s wife, through her conduct,
constructively waived the marital privilege. Since the
wife furthered the criminal offense by her conduct, no
privilege attaches. (N.R.S. 445.150) Therefore, the wife,
no longer in legal jeopardy due to the proffered immunity,
may not refuse to testify.
Joseph, supra. at 898
290 Essential Skills for Paralegals: Volume II
He that would govern others, first should be the master of himself.
Philip Massinger, 1583-1640
The above authority establishes that there is conduct that may
render the spousal communications privilege invalid. In the
instant case, as in Joseph v. James, supra., a defendant
attempted by the privilege to prevent a spouse from testifying,
despite the fact that the spouse had in some way assisted in
the cover up of the criminal act now being charged. Joseph v.
James, by applying N.R.S. 445.150, provides limitations to the
marital communications privilege. Therefore, no privilege should
attach to the defendant in the instant case.
§
12.6 CITING DISSENTING AUTHORITY
A researcher would normally refrain from relying on dissenting
authority. However, once in a while, your side to a case has very
little authority to rely upon. When this happens, the author
must sometimes decide whether to cite a dissenting opinion.
There are at least two instances when citing a dissenting opinion
may be permitted:
Distinguishing Facts
When, within the dissent, if there is commentary which
demonstrates that had the facts been different, the
majority would have ruled differently. Citing a dissenting
opinion may be good strategy. This is often a matter of
the dissenting author providing more detail as to the reason
the majority came to its conclusion. Showing that if the
distinguishing facts been interpreted differently, the court
would have ruled differently.
Literary Citations
When you are quoting the dissenting opinion for literary
purposes, but not relying on the legal logic of that opinion,
such citing may be appropriate. For instance, in a dissenting
opinion in a case involving pornography, a judge makes a
very eloquent comment as to the history of the right of
free speech in this country. The case you are researching
has to do with flag burning, which is a free speech issue,
but not relevant to the question of pornography. You may
quote the dissenting opinion for literary value, because
you are not relying on the ruling or logic of the court.
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§
12.7 EXAMPLE OF CITING A DISSENT
In the case, Smith v. State, 154 Or. App. 71, 961
P.2d 228 (1998), the Court of Appeals of Oregon
ruled that an officer’s inquiry regarding a firearm
after a traffic stop was “within the latitude
granted” to police officers to provide for their
own safety under reasonable circumstances
(Smith, supra. at 72). The dissenting opinion
disagreed with the interpretation of the facts by
the majority, holding that the officer was involved
in appropriate circumstances to allow the inquiry.
Had the majority agreed with this fact analysis,
the decision of the court would most likely support
the logic of the dissent as to application.
A paralegal or lawyer could cite the above dissenting
opinion, pointing out that the dissent was based upon
a disagreement of fact, not an argument of law.
Citing dissenting authority is often out of desperation,
and the author should be aware that it can be viewed
as an indication of weakness, whether such is the case
or not. So be careful when citing a dissent.
292 Essential Skills for Paralegals: Volume II
V O L U M E II
appendix
A
The Client
YOUR VERY OWN CLIENT!
This Appendix provides client hypotheticals presented in Volume 1 of the
Essential Skills for Paralegals Manual and is reprinted here for your convenience.
A book that attempts to train students to be paralegals must present skills and
tasks in which a paralegal would actually engage. This book tries to do so in a
manner as close to a law firm experience as possible. To achieve this, each
student will be assigned his or her own client, and virtually all assignments,
including writing and research tasks, will be based on that client.
Law offices keep important documents in files. At the start of their study,
students should consider purchasing a “Classification Folder” from an office
supply store and attempt to maintain the client file, and keep track of hours
spent working for the client. Just as would be expected in a law firm.
Yet, if every student had the same client, there might be a temptation to
“share” documents and information. Therefore, each student will be assigned
a separate client hypothetical. Using these scenarios, students may create
the following throughout the manual:
1.
2.
3.
4.
5.
6.
7.
An interoffice memorandum
Client correspondence
Initial client interview questions
A summons and complaint
Discovery documents
A Trial Memorandum
Other possible documents at your instructor’s discretion, such as an
Answer or Counterclaim
These are not easy assignments. They are not “feel good” research questions.
They are designed to force you to get into the materials, deep into the materials.
You will not find questions about whether a person has the right to legal
counsel, or what Miranda v. Arizona deals with. Most of the following are real
cases involving real issues. At the end of your paralegal education, it would
be better to have struggled and suffered just to find one or two cases than to
find material right away. Because when a student finds something right away,
they tend to stop. This book is not attempting to teach you to pass tests, but
instead is trying to help you develop high-end paralegal skills. Expect to be
challenged.
Appendix A: The Client
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Since in an actual law office environment a paralegal would be able to contact
the client, as well as witnesses, to find out more about the matter being
represented, students are allowed to expand on the facts provided here to a
reasonable extent. Be creative, but not too creative!
1.
Your client, Wilma Setter, went to see her doctor this past March 1st for
a general checkup. She mentioned a small lump in her breast to the doctor,
but he said not to worry unless it became larger. Two months later she went
to another physician who diagnosed the lump as cancerous and recommended
a modified mastectomy. Her doctor claims that if it had been diagnosed at the
time the client first mentioned it to her doctor, the breast may not have been
lost. Your client wants to sue for “loss of chance” and misdiagnosis.
2.
Our client, Hanna Graves, informed her husband John two weeks ago that
she wanted a divorce. Her husband asked her to reconsider, so she said she
would think about it for two weeks. After the two weeks had expired,
(yesterday), our client told her husband that she had, in fact, filed for divorce
that day and that she was moving out that very evening. Her husband became
enraged, assaulting our client and demanding sex. She refused and begged
him to stop. Despite her pleas, the husband forced himself sexually upon our
client. Your client wants to sue her estranged husband for the emotional
distress caused by the attack.
3.
Your client, Clara Benton, owns a house on the side of a hill. Last month,
she noticed a smell she could best describe as gasoline-like seemed to be
present throughout the house, but especially in the basement. Upon asking
around the neighborhood, she learned that the gas station about one hundred
yards up the hill from her had experienced a ruptured pipe about five and a
half years ago. This is beyond the normal statutory time allowed to file a
court action.
She is now concerned that, even if she proves the ground
contamination was a direct result of the spill, she will not be able to sue.
Your client wants to sue for the damages caused by the negligence of the ABC
Gas Station in allowing the leak.
4.
Our client, Henry Green, was driving alone down Pearl St. on the evening
of the 10th of last month. The speed limit at the vicinity of Pearl and Evans
Streets is 45 m.p.h. At that point of Pearl St. there is a slight curve to the
right as you go down a hill. Apparently as Henry negotiated this curve, he hit
a depression in the pavement (not quite a hole) which is almost impossible
to detect without close examination. A witness at the scene, Melba Torrez,
claims when Henry hit the defect in the road, his car bounced wildly and Henry
lost control. Unfortunately, Henry hit a tree 30 yards down the road before he
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could gain control of his vehicle. Henry died an hour after arriving at the
hospital. Another woman, Kate Morris, came running out after hearing the
crash. She stated, over and over, “I told them this would happen. I told ‘em
so.” When asked what she meant, she said she had been complaining about
that very depression in the pavement to the department at city hall which
deals with road repairs. Their response according to Kate, was, “We’ll get to
it when we get to it.” We represent Henry’s estate. You are suing the state
for failure to make repairs to the road even though they had notice of the
defect.
5.
Our client, Mary Smythe, purchased a large screen TV two weeks ago from
Ace Television Sales. When it was delivered two days later, a dispute arose
with the delivery man, Bryan Zorn, due to damage to the TV. After having
words with Mr. Zorn in the living room, our client left to use the phone in her
bedroom. Mr. Zorn followed and sexually assaulted our client. The delivery
man was arrested two hours later and charged with rape, but you are researching
the civil implications. In addition, it turns out Mr. Zorn had 2 previous
convictions for sexual assault. You are suing Ace Television, claiming they
were negligent in hiring Mr. Zorn.
6.
Our client, Betty Hilton, entered the Lions & Tigers & Bears Pet Shop with
her three-year-old daughter. While there, our client purchased a large parrot.
There was a sign saying “Beware of Parrot” next to the bird, but the store
owner said that was only to keep people from annoying the bird. Shortly after
they arrived, the parrot attacked the little girl, Rita, damaging her eye. It
turned out that the Parrot had a disease which caused it to attack. Your
attorney is suing the pet store under strict liability and negligence.
7.
Our client, Mila Forrest, applied for a job at Himple’s Department Store.
She signed a consent form and release permitting the store to question her
doctor regarding her physical ability to perform certain tasks. During a phone
conversation, the doctor, William Snuffles, mentioned that our client could
not have children. Our client was hired, but soon after she began working, she
was told that one reason she was hired was that the store was happy she
wouldn’t be “burdened” with children. Despite the fact that she was hired, our
client is upset that this information has become common knowledge at work.
Our client is suing the doctor, claiming unauthorized disclosure and breach of
doctor-patient privilege against her physician.
8.
Our client, Michelle Trump, is 35 years old. Last year, Michelle and her
husband, Peter, took a drastic step to impregnate Michelle. After years of
attempting to procreate without success, Michelle and Peter approached a
mutual friend, Robert King, and explained to him that they could not afford to
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go through the expensive process of artificial insemination. They then asked
if Robert would consent to donating sperm. Robert agreed. After a rather
awkward process (which will not be discussed here), Michelle was “injected”
with Robert’s sperm, without having sexual intercourse. Michelle and her
husband Peter did not have sexual relations that night, but did the following
two nights. Michelle soon announced that she was pregnant and nine months
later gave birth to a little girl, Hannah. This should have been the end to a
happy story. However, when Hannah was born, Robert showed up at the
hospital telling everyone he was the father and passing out cigars. Robert is
threatening legal action to be named father of the child with full parental
rights. Your client is taking the offensive, suing to have the paternal rights
of Robert declared nonenforceable.
9.
Our client is Jackie Hopper. About three years ago, her 17 year-old daughter,
Sherry, came down with a very high fever and infection while she was at a two
month summer camp. Jackie was called and drove up the next day to pick her
daughter up. When Jackie arrived, however, she was told that Sherry had
been taken back to the hospital the previous evening. When Jackie arrived at
the hospital, a 45 minute drive, she was told that Sherry had gone into a
coma the previous evening and had died that morning. The cause of death
was an infection of an unknown origin. It was hard, but Jackie has picked up
the pieces and moved on with her life as a single adult. Last week, however,
Jackie received a phone call from Harriet Barnham, the mother of one of the
girls at the camp Sherry had attended. Harriet called to tell Jackie that she
and her daughter Wendy, now twenty, had been talking about Sherry’s
unfortunate death three years earlier and Wendy said, “You know, one of the
counselors said Sherry’s was the second case of toxic shock syndrome that
year.” Harriet called thinking that Jackie would want to know. Jackie would
like us to represent her. Before we begin investigating the facts of Sherry’s
death, we need to find out whether the statute of limitations will prevent us
from winning anything for Jackie, anyway. Your client is suing for negligence.
The research question will eventually be: When does the clock start ticking as
to liability for injury from toxic shock syndrome?
10. Your client, Fred Northrop, is employed by the Acme Insurance Company.
He had worked there for about ten years when he was transferred to the risk
management division. His supervisor, Helen Redmond, seemed to take a
special interest in Fred. She often asked Fred to lunch and even invited him
to attend several out-of-town seminars with her. Fred always refused because
he was happily married to his wife, Wilma, and did not want there to be any
misunderstandings. On March 3, 1992, at about 3:00 P.M., Helen called Fred
into her office and proceeded to “lay her cards on the table.” She told Fred
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that he was a good worker and that there was currently a position as Assistant
Risk Control Manager for which he was being considered. She also made it
clear that he would have a much better chance at the promotion if he would
accompany her to Las Vegas for the annual Risk Manager’s Symposium. Helen
said, “Since I’m the person who will make the final recommendation, I think
it would be in your best interest to come to Vegas with me.” Fred refused. He
explained his marital situation and told Helen that he was only interested in
a business relationship. Helen said that was fine with her, but from that point
on her attitude toward Fred changed. She criticized his work in front of
others, referred to him as a lazy worker, and, for the first time since working
for Acme, received a poor performance review. It also turned out that someone
who had only been working at Acme for seven months and who had no
experience in risk management was hired for the position. Your attorney
wants to file suit in trial court on grounds of sexual harassment and loss of
economic opportunity.
11. Your client, William Jackson, is being sued in civil court for negligence. On
January 15, 1992, William was on his way to the shopping mall at about 4:00
P.M. At the intersection of Trinity Ave. and Presley Blvd., William witnessed
a red Acura Legend, driven by George Hemple, run a red light and crash into
a blue Oldsmobile Cutlass Supreme, driven by Paula Eureka. The Legend
struck the Oldsmobile on the rear end, passenger side. As William got out of
his car and ran towards the accident, he could see the woman getting out of
the blue Oldsmobile. He also observed smoke coming from the rear of the
Oldsmobile and was afraid there would soon be an explosion. As he got
closer, he noticed the driver of the Legend, George Hemple, still in the car,
lying across the front seat, moaning in agony. William made an instantaneous
decision to pull the injured man from the car. His intent was to save the man
from what William thought would be an inevitable explosion. As it turned
out, there was no fire and the man William “saved” was paralyzed from the
waist down. Doctors have stated that there is no way to determine what
caused the paralysis, the accident or being pulled from the car. In spite of
this, Mr. Hemple has sent harassing letters to William, given newspaper
interviews, and appeared on the “Jerry Stinger” television show, claiming he
was paralyzed by William. William is suing Mr. Hemple for libel and slander.
The eventual research question will be whether William can be held accountable
for any injuries suffered by Mr. Hemple.
12. Lilly Carr worked nights as a waitress. She usually got off at about 11:00
P.M. On December 3, 1991, Lilly got off work a bit late, at about 11:30 P.M.
As usual, she caught the bus. It usually took her about half an hour to get
home since she lived at the last stop on the route. On this particular evening
the driver, Jake Ewing, struck up a conversation with Lilly. At Lilly’s normal
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stop, however, the bus kept going. Jake drove to a rural area where he
sexually assaulted Lilly. Jake was convicted of rape, and now Lilly is suing
the Haul ‘em Bus Company for negligently hiring Jake. She claims that the bus
company should have had knowledge of the fact that Jake had a previous
conviction for sexual assault. You are suing the bus company for negligence.
13. Gary Phelps has been charged with murder. On November 12, 1991, his
girlfriend, Jennifer Harmon, was seven months pregnant. Gary and Jennifer
got into an argument which ended in Jennifer falling down a flight of stairs
after a struggle. After an examination at St. Bernard’s Hospital, it was
determined that the fetus was no longer alive. Gary is charged with murder.
You work for Jennifer’s civil attorney, who wants to file a separate lawsuit for
the emotional trauma caused by the assault and the loss of the fetus.
Eventually, you will need to research whether the murder charge is valid.
14. Penny Katz is suing Home State University. Her son, Jason, was a freshman
at the school last fall. On September 11, 1991, Jason went to a “rush” party
at Mooga Alpha Mooga fraternity house. Part of the evening included hazing
new recruits. The newcomers were told they would have to drink a large
quantity of alcohol. After finishing his last beer, Jason stumbled outside and
collapsed in the bushes. He was found there the next morning and was taken
to the hospital in a coma. He never regained consciousness and died on
September 25, 1991. Your client wants to sue the university for negligence
in allowing the practice of hazing.
15. Your client is Yvonne Jacobson. She is 19, two months pregnant, and has
decided to have an abortion. Before she learned she was pregnant, Yvonne
broke up with her boyfriend, Keith Vickers. Keith does not want Yvonne to
have an abortion and has filed suit in the federal trial court to prevent her
from getting one. Yvonne has never lived with Keith, and the pregnancy was
not planned. Yvonne is filing a complaint in the state civil court, arguing that
Yvonne does not have to have the consent of the father to obtain an abortion.
She claims this is a state matter, and the cause of action is violation of her
constitutional right to an abortion.
16. Your client, Clyde Wilson, had worked at Dice & Jacobs Law Firm for 20
years as a file clerk. He was thought of in the highest terms at the firm and
always received sparkling reviews. When Charles Jacobs called Clyde into his
office on Clyde’s 20th anniversary last October 22nd, Clyde expected a raise.
Instead, he was told that the firm appreciated his work over the years, but
that he was being let go and someone younger was going to be hired. Since
being fired, Clyde has sought employment elsewhere without success. It is
important to argue that Clyde could still perform the duties required of his
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position. You will argue that Clyde’s civil rights have been violated.
attorney is filing a suit based upon violation of those civil rights.
Your
17. Your client, Donna Kelp, is divorced from Harold Kelp. During the final
stages of their marriage, the Kelps sought marital counseling from Helen
Sharpe. During one of the sessions, Harold admitted to having being abusive
to both her and the children. They were awarded joint custody of the children.
Harold has continued the abuse since the divorce, and Donna wants to sue for
full custody. She now wants to bring the admission by Harold made during
counseling to the court’s attention in considering support and child custody.
Harold Kelly is arguing that the testimony of both Donna Kelp and Helen
Sharpe are prohibited by the doctrine of doctor-patient privilege. Eventually,
you must argue that, while the psychiatrist is prohibited from testifying due
to the privilege, the privilege does not prevent the spouse, Donna, from
testifying. But first, a complaint has to be filed claiming emotional distress
and assault.
18. Your clients are Kathy and William Bates. They are suing the Regional
School District for the death of their son, Timmy. Timmy was in the tenth
grade. For months, Timmy had complained to his teacher, Martha Rice, about
another student, Don Gallon. Timmy complained that Don threatened him on
a regular basis and was generally a bully. The teacher told Timmy not to be
a baby and that he must learn to stand up for himself. On November 16th of
last year, Timmy was confronted by Don on the school grounds. Timmy tried
to stand up to him. Don grabbed a lead pipe from his backpack and hit Tim
my over the head. Timmy died two days later. The school district claims there
was no negligence and that the teacher could not have foreseen what
eventually occurred. You argue that since the teacher had notice of the
threats and took no action, the school district is liable. Your complaint is
based upon negligence and failure to protect.
19. Your client, Wilma Maples, is a 65 year-old woman who is in the hospital
to have surgery. The surgery, a knee replacement, goes well. During
rehabilitation, she needs assistance in many seemingly simple tasks, such as
getting out of bed. On the past February 11th, Wilma was going to take a
morning shower. She was helped to the shower by an attendant. Wilma took
off her glasses and got in the shower. When Wilma was finished, she tried to
get into the wheel chair. Unfortunately, the attendant had forgotten to lock
the wheels on the wheelchair, a common practice under such circumstances.
Wilma fell to the hard floor. It turned out that Wilma suffered fractured
vertebrae. Your attorney is suing for negligence. The hospital claims that
there was no negligence on its part, and that there was negligence on Wilma’s
part since she might have noticed the unlocked wheels had she had her
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glasses on. They also claim that the pain being suffered by Wilma is the
result of other deterioration of the spinal column, not the fractured vertebrae,
and that the fall simply triggered the pain.
20. Your client, Sue Hazely, took care of her father for the last 2 years of his
life. On this past April 3rd, her father, James Roy, was admitted to the
hospital for reactions to chemotherapy treatment. James had a rather rare
lung disease, and had been given 5 to 10 years to live. During his three week
stay, several things went wrong, including a cardiologist (Helen Hale) who
failed to read the patient’s chart before prescribing a course of action. Her
proposal assumed the disease was in the final stages instead of the beginning
stages of the disease, and therefore did not aggressively treat the symptoms.
In addition, the father was allowed to fall three times during his stay, each
time being left alone in precarious positions. The last fall occurred in the
middle of the night. While on “double oxygen,” he was taken to the bathroom
and left there. The attendant forgot about him, and he was found 45 minutes
later on the floor, barely alive. He was placed on a respirator for a few hours,
and eventually regained consciousness. He was, however, severely weakened
by the fall, and died two days later. Your complaint is against the hospital;
Inhumana Hospital, with the claims of negligence and intentional infliction of
emotional distress.
It is highly recommended that students purchase a classification file to create
and maintain a file for their clients. Keep all materials, including notes, prepared
documents, copies of relevant cases and statutes in the appropriate panels of
the file. Consider purchasing the following:
- a legal size classification file with two inserts
with 6 panels. They usually come in packets
of 5, so one packet will serve several students.
Classification files may be found at most office
supply stores.
- a 2-hole punch (a cheap one!)
- small labels for naming each panel
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appendix
B
Interoffice Memorandum Authorities
AUTHORITIES
The following authorities are provided within this appendix to support the
Interoffice Memorandum assignment in Segment Two. For some of the opinions provided below, only selected pages have been provided. If desired, you
may look up the full opinion in the law library.
People v. Milner, 35 P.3d 670 (Colo. 2001)
In re Morin, 319 Or. 547, 878 P.2d 393 (1994)
Attorney Griev. Comm. v. Hallmon, 343 Md. 390, 681 A.2d 510 (1996)
Gen. Stat. 88.120
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Stat. 88.120
An attorney shall not assist a non-lawyer in the unauthorized practice of law. To this end, an attorney shall properly
train and supervise those employees under his supervision,
and shall take reasonable steps to ensure staff compliance
with all ethical rules and standards.
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appendix
C
Analysis Exercise Case Example
French v. Fischer, 50 Tenn.App. 587, 362 S.W.2d 926 (1962)
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