Q UINCY COLLEGE Paralegal Studies Program Paralegal Studies Program Legal Research & Writing LAW-215 IntroductionTo Finding the Law

Introduction to Finding the Law In this introduction, we will learn about: In this introduction, we will learn about: The role of paralegals in legal research The role of paralegals in legal research The ethical duty to perform research competently The ethical duty to perform research competently The different types of law libraries and their uses The different types of law libraries and their uses The sources of law in the United States The sources of law in the United States The classification of law books as either primary or secondary sources The classification of law books as either primary or secondary sources The major law book publishers The major law book publishers

The Paralegal’s Role In Legal Research The Paralegal’s Role In Legal Research

The Paralegal’s Role in Legal Research Paralegals are expected to: Paralegals are expected to: Perform legal research competently and effectively (a “core competency” that paralegals must possess). Perform legal research competently and effectively (a “core competency” that paralegals must possess). Know how to efficiently use print resources, computer-assisted research services (e.g., LexisNexis and Westlaw), and the Internet to find the law applicable to research problems. Know how to efficiently use print resources, computer-assisted research services (e.g., LexisNexis and Westlaw), and the Internet to find the law applicable to research problems. Effectively communicate the results of their research (another “core competency”). Effectively communicate the results of their research (another “core competency”).

Ethical Duties In Legal Research Ethical Duties In Legal Research

Rules of Professional Conduct A Lawyer: A Lawyer: Shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. [MRPC 1.1] Shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. [MRPC 1.1] Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners.

Rules of Professional Conduct A Lawyer: A Lawyer: Is forbidden to knowingly make a false statement of material fact or law to a court. [MRPC 3.3 (a)(1)] Is forbidden to knowingly make a false statement of material fact or law to a court. [MRPC 3.3 (a)(1)] Must inform the court of legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the lawyer’s client and not disclosed by opposing counsel. [MRPC 3.3 (a)(3)] Must inform the court of legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the lawyer’s client and not disclosed by opposing counsel. [MRPC 3.3 (a)(3)] Underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to a case. Underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to a case.

Rules of Professional Conduct A Lawyer: A Lawyer: Having direct supervisory authority over (a) nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer. [MRPC 5.3 (b)] Having direct supervisory authority over (a) nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer. [MRPC 5.3 (b)] Shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved. [MRPC 5.3 (c)(1)] Shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved. [MRPC 5.3 (c)(1)] Lawyers should give their nonlawyer assistants appropriate instruction and supervision, and should be responsible for their work product. Lawyers should give their nonlawyer assistants appropriate instruction and supervision, and should be responsible for their work product.

Sources of Law In The United States Sources of Law In The United States

Sources of Law in the United States United States Constitution -- Law of the Land United States Constitution -- Law of the Land Establishes Congress, the Presidency and Courts Establishes Congress, the Presidency and Courts Gives to States powers not given to Federal government Gives to States powers not given to Federal government Guarantees basic rights to all citizens Guarantees basic rights to all citizens State Constitutions State Constitutions Create State executive, legislative & judicial systems Create State executive, legislative & judicial systems Statutes -- passed by Federal & State governments Statutes -- passed by Federal & State governments Common Law -- established by precedent, or earlier cases decided by courts Common Law -- established by precedent, or earlier cases decided by courts Administrative Law -- created by agencies Administrative Law -- created by agencies Other -- treaties and executive orders Other -- treaties and executive orders

The Common Law Tradition Judge-made law; made up of all the decisions made by appellate courts. Judge-made law; made up of all the decisions made by appellate courts. Filled voids where no other laws existed. Two hundred years ago, almost all law was common law; most new law today is statutory. Filled voids where no other laws existed. Two hundred years ago, almost all law was common law; most new law today is statutory. Based on stare decisis, meaning “let the decision stand” (previous decisions, or precedents, are generally upheld in similar cases.) Based on stare decisis, meaning “let the decision stand” (previous decisions, or precedents, are generally upheld in similar cases.)

Case Law Under the principle of judicial review (first established in the case of Marbury v. Madison), the American justice system also relies on the courts to test and interpret laws established by: Under the principle of judicial review (first established in the case of Marbury v. Madison), the American justice system also relies on the courts to test and interpret laws established by: Federal and State Legislatures Federal and State Legislatures Administrative Agencies Administrative Agencies The Executive Branch The Executive Branch

Stare Decisis and Judicial Hierarchy Primary law from the state or jurisdiction is binding within the state or jurisdiction. Primary law from the state or jurisdiction is binding within the state or jurisdiction. Primary law from another state or jurisdiction is persuasive only to the state or jurisdiction. Primary law from another state or jurisdiction is persuasive only to the state or jurisdiction. If the state or jurisdiction adopts the law or position of another state or jurisdiction, then that position becomes binding within the judicial hierarchy. If the state or jurisdiction adopts the law or position of another state or jurisdiction, then that position becomes binding within the judicial hierarchy. Secondary law (no matter where it originates) is persuasive only. Secondary law (no matter where it originates) is persuasive only. Higher courts in any given judicial hierarchy bind lower courts to that hierarchy. Higher courts in any given judicial hierarchy bind lower courts to that hierarchy. Higher courts can depart from a previously announced rule if there are compelling and important reasons for doing so. Higher courts can depart from a previously announced rule if there are compelling and important reasons for doing so.

How Stare Decisis Permits Change 1.Courts have broad discretion in selecting appropriate precedent. 2.Courts may choose which facts to stress and which to ignore in selecting precedent. 3.The rule of law from the precedent case may be interpreted broadly or narrowly. 4.Courts may distinguish the precedent case. 5.Appellate courts may overrule a precedent case. 1.Courts have broad discretion in selecting appropriate precedent. 2.Courts may choose which facts to stress and which to ignore in selecting precedent. 3.The rule of law from the precedent case may be interpreted broadly or narrowly. 4.Courts may distinguish the precedent case. 5.Appellate courts may overrule a precedent case.

Primary Authorities (“Binding”) AUTHORITIESSOURCE CasesJudiciary ConstitutionsLegislature StatutesLegislature Administrative Regulations Administrative Agencies Executive Orders Executive Branch Treaties

Secondary Authorities (“Persuasive”) Encyclopedias Encyclopedias Law review articles Law review articles Periodical publications Periodical publications Treatises and texts Treatises and texts Dictionaries Dictionaries Attorneys general opinions Attorneys general opinions Restatements Annotations Foreign sources Form books Practice guides (such as jury instructions or opinions on ethics) AUTHORITIES:

Where to Find the Law: Law Libraries Where to Find the Law: Law Libraries

Types of Law Libraries Law school libraries (e.g., the Harvard Law School Library) Law school libraries (e.g., the Harvard Law School Library) Paralegal school libraries (e.g., QC’s Anselmo Library) Paralegal school libraries (e.g., QC’s Anselmo Library) Local libraries (e.g. The Thomas Crane Public Library in Quincy) Local libraries (e.g. The Thomas Crane Public Library in Quincy) Government or agency law libraries (including Federal Depository Libraries – e.g., the Boston Public Library) Government or agency law libraries (including Federal Depository Libraries – e.g., the Boston Public Library) Courthouse law libraries (e.g., the Massachusetts Trial Court Law Libraries) Courthouse law libraries (e.g., the Massachusetts Trial Court Law Libraries) Bar association and private group law libraries (e.g., the Social Law Library) Bar association and private group law libraries (e.g., the Social Law Library) Law firm libraries Law firm libraries

Tips for Using Law Libraries “Know before you go” and “Let your fingers do the walking” “Know before you go” and “Let your fingers do the walking” Before you make a trip to a Law Library, access the library’s website or call its information desk to determine: Before you make a trip to a Law Library, access the library’s website or call its information desk to determine: The library’s policies regarding public access use of their facilities, its location and hours of operation The library’s policies regarding public access use of their facilities, its location and hours of operation Whether their holdings include the authorities that you seek and how to access them (i.e., “open stacks” or by “call”) Whether their holdings include the authorities that you seek and how to access them (i.e., “open stacks” or by “call”) What other research tools and facilities are available at the library (e.g., scope of computer-assisted services, access to the internet, reproduction services, etc.) and any policies applicable to their use What other research tools and facilities are available at the library (e.g., scope of computer-assisted services, access to the internet, reproduction services, etc.) and any policies applicable to their use

Law Libraries in Massachusetts For links to Law Libraries in Massachusetts, go to the resource document by that title on my Legal Research & Writing web page For links to Law Libraries in Massachusetts, go to the resource document by that title on my Legal Research & Writing web page

Law Book Publishing

Law Book Publishers A tremendous amount of publication of legal authorities occurs each year. A tremendous amount of publication of legal authorities occurs each year. The Federal and state governments publish statutes, administrative rules and regulations, executive orders, etc., as well as some case law. The Federal and state governments publish statutes, administrative rules and regulations, executive orders, etc., as well as some case law. The U.S. Government Printing Office is the principal source for all Federal materials. The U.S. Government Printing Office is the principal source for all Federal materials.

Law Book Publishers The vast majority of case law, and virtually all of the Secondary Authorities are privately published. The vast majority of case law, and virtually all of the Secondary Authorities are privately published. The principal private legal publishers are: The principal private legal publishers are: Thompson/West Thompson/West LexisNexis Group LexisNexis Group Wolters Kluwer Wolters Kluwer

Where to Find the Law: Non-Print Media Where to Find the Law: Non-Print Media

In addition to conventional print resources, there are a variety of computer-assisted resources for performing legal research. These include fee- based online commercial databases, and the Internet. In addition to conventional print resources, there are a variety of computer-assisted resources for performing legal research. These include fee- based online commercial databases, and the Internet. The principal commercial databases are: The principal commercial databases are: LexisNexis LexisNexis Westlaw Westlaw LoisLaw LoisLaw We will study these resources in detail later in the course. We will study these resources in detail later in the course.

Reading Cases

How to Read a Case Title (identifies the parties) and citation Title (identifies the parties) and citation Facts - distinguish between: Facts - distinguish between: material facts (what happened?) and legal history (how did the case get here?) Issue(s) (What must the court decide?) Issue(s) (What must the court decide?) Decision (Who prevailed?) Decision (Who prevailed?) “Holding” or legal rationale (Why did the court decide the case in the way it did?) “Holding” or legal rationale (Why did the court decide the case in the way it did?)

The Holding and Dictum Only the “Holding” or actual rule of law announced in a case (also called the ratio decendi or “reason of the decision”) is considered binding authority. Only the “Holding” or actual rule of law announced in a case (also called the ratio decendi or “reason of the decision”) is considered binding authority. HINT: HINT: Look for a key phrase such as, “We hold that...” The remainder of the language in the case is referred to as dictum (a remark “in passing”) and is considered persuasive authority only. The remainder of the language in the case is referred to as dictum (a remark “in passing”) and is considered persuasive authority only.

Case Citation Form

All cases follow the same basic citation form. All cases follow the same basic citation form. A case citation is a reference to where a case (also called a decision or an opinion) is printed in a book. A case citation is a reference to where a case (also called a decision or an opinion) is printed in a book. EXAMPLE: EXAMPLE: Roe v. Wade, 410 U.S. 113 (1973) Names of Parties Volume Number Year of Decision Page in Volume Reporter

Case Citation Form Two primary citation manuals in the U.S.: Two primary citation manuals in the U.S.: The Bluebook: A Uniform System of Citation The Bluebook: A Uniform System of Citation ALWD Citation Manual ALWD Citation Manual We will study citation methodology in detail later in the course. We will study citation methodology in detail later in the course.

End of Introduction to Finding the Law End of Introduction to Finding the Law