Presentation on theme: "LEGAL RESEARCH PART TWO. Legal Research Part 2 zResearching Standards of Review zResearching Using American Law Reports zResearching Procedural Issues."— Presentation transcript:
Legal Research Part 2 zResearching Standards of Review zResearching Using American Law Reports zResearching Procedural Issues zResearching Legislative History zResearching Administrative Law
Standards of Review zMust Know Where You Are Procedurally zDon’t Research the Substantive Issues Before You Know the Standard of Review zArgue the Standard of Review Most Advantageous to Your Position
Standards of Review zAt its clearest level, a standard of review prescribes the degree of deference given by the reviewing court to the action or decisions under review. zAlternatively, from an angle of empowerment, a review standard describes the positive authority the appellate court wields in its review function. z… the fundamental notion behind a standard of review is that of defining the relationship and power shared among judicial bodies. zChildress, pages 1-2 -- 1-3
Standards of Review z“Because a thoughtful consideration of the appropriate standard of review will often determine the outcome of the appeal, it is a very bad brief that does not consider the standard of review issue with the same care that is ordinarily lavished on the facts and substantive law.” -- Sullivan, Standards of Review in Appellate Advocacy at 59
Standards of Review z“A formalistic statement of the relevant standard of review is no more useful than complete abdication. Far too many lawyers recognize that they ought to say something about the standard of review, but think they need not develop the concept as part of their argument. They tend to think of the standard of review as a formal appendage, rather than as part of the very fabric of the appeal.” Sullivan, Standards of Review in Appellate Advocacy at 61
Standards of Review zStandards of review are critically important in effective advocacy. In large part, they determine the power of the lens through which the appellate court may examine a particular issue in a case. The error that may be ground for reversal under one standard of review may be insignificant under another. It doesn’t matter what you ask the court to do on appeal if the court cannot jump the hurdle posed by the standard of review. You must craft your brief on appeal to reflect the proper standard and to show why, under that standard, your client deserves to win. If your appeal raises more than one issue, then you should state the standard of review for each point. zAldisert, page 57.
Standards of Review zThe appellate process generally reduces to limited types of review: fact finding by judges under the clearly erroneous rule or by the administrative agency under the substantial evidence rule; review of the trial court’s exercise of discretion; and plenary review of the choice, interpretation and application of the controlling legal precedents. The competent advocate will have a clear understanding of the scope of review pertaining to each point in his or her brief. I elevate the necessity of correctly stating the review standard to a question of minimum professional conduct. zAldisert, page 58.
Good Standard of Review zThis court applies the clearly erroneous standard, Rule 52(a), F.R.Civ.P., to a review of facts found by a judge. “It is the responsibility of an appellate court to accept the ultimate factual determination of the fact-finder unless that determination either (1) is completely devoid of minimum evidentiary support displaying some hue of credibility, or (2) bears no rational relationship to the supporting evidentiary data. Unless the reviewing court establishes the existence of either of these factors, it may not alter facts found by the trial court.” Krasnov v. Dinan, 465 F.2d 1302 (3d Cir. 1971).
Not So Good Standard zThe standard of review for issues number 1 through 4 and 6 is whether the district court erred as a matter of law. This court has plenary review over issue number 5.
Standards of Review - Readings zAldisert, Winning on Appeal yStandards of Review x pages 57-78 xReserve KF9050.A935 1997 zSchwab, Appellate Practice Manual yStandards of Appellate Review, xpages 16-25 xReserve KF9050.A75A68
Standards of Review - Readings zChildress, Federal Standards of Review, 3d ed. yVolume 1 - Civil Cases and General Review Principles yVolume 2 - Criminal Cases and Administrative Appeals x Reserve KF4575.C48 1999
Standards of Review - Readings zSullivan, Standards of Review in Appellate Advocacy (KF 9050.A943) (on reserve under AA-I) zHesse, Arguing the Correct Standard of Review, 7 Calif Lawyer 92 (Dec. 1987) zHall, Standards of Review in Civil Appeals, 21 St. Mary’s L.J. 865 (1990).
Standards of Review - Digests zState Law yUse the Appropriate State Digest yDigest Topic “Appeal and Error” xReview, Scope, Standards, and Extent xAppeal & Error key numbers 836-1099
Standards of Review - Digests zFederal Law yUse West’s Modern Federal Practice Digest yDigest Topic “Federal Courts” xCase on Appeal to the U.S. Supreme Court Federal Courts key numbers 451-520 xCase on Appeal to U.S. Court of Appeal Federal Courts key numbers 751-780
Key Number Searches on Westlaw z Appeal & Error 944 z Appeal & Error yReview xDiscretion of Lower Court Power to Review z Topic Number z 30
Key Number Searches z Appeal & Error 944 z Appeal & Error yReview xDiscretion of Lower Court Power to Review z Topic Number z 30k
Key Number Searches z Appeal & Error 944 z Appeal & Error yReview xDiscretion of Lower Court Power to Review z Topic Number z 30k944
Key Number Searches z Appeal & Error 944 z Appeal & Error yReview xDiscretion of Lower Court Power to Review z Topic Number z 30k94!
Key Number Searches z Appeal & Error 944 z Appeal & Error yReview xDiscretion of Lower Court Power to Review z Topic Number z 30k94! 30k95!
Key Number Searches z Appeal & Error 944 z Appeal & Error yReview xDiscretion of Lower Court Power to Review z Topic Number z 30k94! 30k95! /p abuse* /s discretion
Research Using American Law Reports zAn Annotated Reporter System zThe Reports Series zResearch Methods zUpdating and Shepardizing
Annotated Reporter System zSelective Publication of Cases ythat may resolve a long-standing argument ythat set out a new question ythat explore issues in an interesting way
Annotation zthoroughly researched survey of a particular legal issue zits development zits judicial treatment in ALL jurisdictions
American Law Reports 1st Series: 1919-1948, 175 volumes 2nd Series: 1948-1965, 100 volumes 3d Series: 1965-1980, 100 volumes 4th Series: 1980-1992, 90 volumes 5th Series, 1992 to date American Law Reports, Federal, 1969 to date U.S. Reports, Lawyers Edition
A.L.R. Federal zA.L.R. Fed. reports and annotates federal court cases which apply or construe federal law. zPrior to 1969, such cases were included in A.L.R., A.L.R. 2d and A.L.R. 3d. zFederal court cases construing or applying state law are not covered by this series.
U.S. Reports, L.Ed. & L.Ed. 2d zReports all case from the U.S. Supreme Court zSelectively annotates the cases zProvides short summaries of the briefs of counsel
A.L.R. Annotations z Annotations Cover a Narrow Legal Issue z Features of Each Annotation yAnnotation Table of Contents yIndex yJurisdiction Table yScope of the Annotation yRelated Annotation ySummary and Comment
z A.L.R. Index y6 volume topical index yCovers A.L.R. 2d - 5th and Fed. z A.L.R. Index Tables yIn volume 6 of the index yU.S.C.S. cite yC.F.R. cite A.L.R. Research Methods
zA.L.R. Index Tables yFederal Rules cite yState Statutes and Constitutions yUniform Laws yRestatements yCodes of Ethics
A.L.R. Research Methods zA.L.R. Quick Indexes yOne Volume yA.L.R. Quick Index covers A.L.R. 3d-5th yA.L.R. Fed. Quick Index covers A.L.R. Fed. and L.Ed.2d
A.L.R. Research Methods zA.L.R. Digests ySeldom used z American Jurisprudence, 2d yFootnotes include references to A.L.R. yAm.Jur. 2d is on Westlaw z LEXIS AND WESTLAW yA.L.R. 2d, 3d, 4th, 5th, Fed.
Updating A.L.R. z 3rd, 4th, 5th and Federal yannual pocket parts z 2nd yLater Case Service yUpdated by Annual Pocket Parts
Updating A.L.R. zA.L.R. 1st yBlue Book of Supplemental Decisions z Annotation History Tables ySupplemented or Superseded Annotations yIn Last Volume of the Index
Shepards Citators and A.L.R. z Citations TO A.L.R. in State, Regional and Federal Shepards z Citations OF A.L.R. Annotations y Shepard’s Citations For Annotations y KF105.2.S415 y Volume 2 lists citations to Annotations in court decisions
Court Rules zRules of Civil Procedure zRules of Criminal Procedure zRules of Appellate Procedure zLocal Rules zRules of Evidence
Federal Court Rules - Sources zU.S. Code Annotated yFollowing Title 28 zU.S. Code Service ySeparate Rules Volumes at end of the Set
Federal Court Rules - Sources zAnnual West Volumes yFederal civil judicial procedure and rules xReserve KF8816.A193 yFederal Criminal Code and Rules xReserve KF9607.523.A19F4
Federal Court Rules - Sources zMoore’s Federal Practice Rules Pamphlets yAnnual Mini-Treatise xReserve KF 8820.A313M63
Federal Court Rules - Reporters zFederal Rules Decisions yWest Key Number Reporter yRules of Civil and Criminal Procedure yDistrict Court Decisions yArticles on Federal Procedure xCore KF120.F45
Federal Court Rules - Reporters zFederal Rules Service yRules of Civil Procedure Only yAll Levels of Federal Courts xKF8830.F45 zFederal Rules Digest yOrganized by Rule Number
Major Treatises - Federal Law z Moore's Federal Practice yorganized by rule xKF8820.A313 M63 z Wright, Federal Practice and Procedure. yorganized by rule xKF9619.W7
Major Treatises - Federal Law zFederal Procedure, Lawyer’s Edition yorganized by subject xKF8835.F43
Federal Local Court Rules zFederal Local Court Rules yCovers Local Rules for the Federal District Courts and the Courts of Appeal xReserve KF8820.A193
Rules of Evidence zTreatise yWeinstein's Evidence : commentary on rules of evidence for the United States courts and magistrates yReserve KF8935.W39 zSources (Annotated) yU.S. Code Annotated yU.S. Code Service
Rules of Evidence zReporter and Digest yFederal rules of evidence service yKF8935.F4 yFederal rules of evidence digest zState Rules of Evidence
Federal Rules Shepard's zShepard’s United States Citations, Statutes ycovers ALL Federal rules
Federal Rules Shepard's zShepard’s Federal Rules Citations yRules of Civil Procedure yRules of Criminal Procedure yRules of Evidence yRules of Appellate Procedure ySimilar State Rules
State Court Rules zPublication Varies yPart of State Annotated Code ySeparate Annotated Set zShepard’s Citators yState Citator, Statutes volume yOther Features xA.G.’s Opinions, Ethics Rules xUniform Jury Instructions xMunicipal Ordinances
Special Shepard’s Citators zShepard’s Law Review Citations zFederal Law Citations in Selected Law Reviews zProfessional and Judicial Conduct Citations zRestatement Citations
Special Shepard’s Citators zSubjects Shepard’s yBankruptcy yFederal Labor Law yFederal Tax Law yImmigrations and Naturalization Citations
Special Shepard’s Citators yBanking Law yCorporation Law yCriminal Justice Citations yUniform Commercial Code Citations