Legal Analysis, Research, and Writing

8 CHAPTER

LEGAL ANALYSIS, RESEARCH, AND WRITING

SUMMARY OF KEY CONCEPTS possibility of treating the county’s inadequate storm drain systems as a public or private nui- Section 1. Legal Analysis sance. Obviously, the legal assistant will have to understand the concept of “nuisance” and its pri- Legal analysis is the link between legal research vate and public variations. It will be necessary to and legal writing. Legal research is the foundation determine whether a local government is exempt for sound legal analysis. Paralegals engage in legal from nuisance liability, either by statute or under research to: the common law. Although the attorney has not • answer specific questions; asked the legal assistant to research issues of dam- • find legal principles and authorities that can ages, she should be alert for case law which might affect the client’s interests; and, support the recovery of damages for emotional distress, in case that issue arises later. • provide guidance for the client to deal with When researching these issues, the paralegal some situation in a lawful and beneficial will be using various sources of legal authority. It is manner. essential to understand their differences and how To be successful in legal research, one must un- they can govern or influence the outcome of any le- derstand her objective. When the legal assistant gal controversy. Primary sources always state the takes on a new research assignment, it is custom- law, and are either constitutional, statutory, regula- ary for the attorney to brief her on the circum- tory or case law. Primary sources for Texas law are stance and purpose, so that her research can be fo- mandatory authority for the courts of Texas—those cused and effective. courts are bound to follow and apply them. The When the legal assistant understands the con- courts of other states may consider Texas primary text for the research assignment, the next step is to sources as persuasive, but they are bound only by define the issues. In Chapter 8, a hypothetical situ- the primary sources of their own states. Thus, pri- ation is used to demonstrate this process. Because mary sources can be mandatory or persuasive, de- a client’s property has been flooded by runoff from pending upon the jurisdiction of that law. up-slope development, the attorney wants to know The courts of each state are the final authority if the county government has any liability for ap- on the law of that state. Even the U.S. Supreme proving the development without improving the Court considers itself bound by the decisions of drainage and storm drain systems. One issue is the state courts on the law of their respective jurisdic- STUDY GUIDE 187 tions. Within each state, of course, it is the court of The second of these circumstances must be ap- last resort that has the final word on the meaning proached with care. The researcher must not ig- and application of that state’s laws. nore unfavorable mandatory authority, which al- In special circumstances, a court of one state ways must be brought to the attorney’s attention. will treat the primary sources of another state as Favorable persuasive authority also should be re- though they were mandatory authority. The most ported, if it is favorable to the client’s situation. In common example arises under contract law. Many many situations, the mandatory authority is contracts identify the state whose laws are to gov- strictly case law, which the appellate courts may ern that contract. If a contract states that New York decide to change. law is to govern that contract, then Texas courts will It may sound contradictory to state that the apply New York’s primary sources when interpret- courts might change “mandatory” authority, but ing or enforcing that contract. It is not that a con- case law is mandatory only for the lower courts of tract can change a court’s source for mandatory au- that jurisdiction. An appellate court that has cre- thority—rather, it is the parties to that contract who ated case law may always modify it at a later time. have chosen the authority that will govern it. When that happens, the new rule then becomes Secondary sources are very different from pri- mandatory for the lower courts of that jurisdiction. mary sources. While primary sources state the law, Occasionally, it is difficult to locate case law and are created by government, secondary which governs a novel legal issue. It might be that sources tell us about the law. Secondary sources it is an issue of first impression in that jurisdiction. can be created by anyone who is able to get his le- In other words, no court of that jurisdiction has gal theories into print. Examples of secondary ruled on the issue. When this occurs, persuasive sources include legal encyclopedias, legal trea- authority from other jurisdictions becomes very tises, law review articles, and other publications. important. The courts of some jurisdictions are Secondary sources are never mandatory for any considered to be particularly influential as persua- court, and succeed in being persuasive only if they sive authority—for example, Delaware for corpo- have gained some recognition among jurists or le- rate law, Texas and California for tort law. gal scholars. Since they are not mandatory, a court One approach to legal analysis is called the may consider or ignore any secondary source. IRAC method, which most attorneys learn in law To summarize, the only mandatory authority school. IRAC stands for: for any court is the primary sources of that juris- • Issue diction. The primary sources of other jurisdictions, and all secondary sources, are only persuasive au- • Rule thority, at best—to be considered or ignored, at the • Application court’s own discretion. With primary sources, then, • Conclusion the critical issue is one of jurisdiction. While Texas courts are not bound by the pri- This method ensures that the researcher ap- mary sources of other states, like the courts of all proaches the problem in a systematic and produc- states, they are bound by the Supreme Law of the tive manner. It breaks the analytical process into Land (i.e., federal law). So primary sources for fed- four basic steps: eral law—the U.S. Constitution, federal statutes, • defining the Issue; treaties, and regulations—are mandatory author- • locating the Rule; ity in all state and federal courts. This becomes significant, however, only when a question of federal • Applying that rule; and, law arises (e.g., when a state law is challenged as • stating the Conclusion. violating the Fourteenth Amendment). Sometimes, the rule can be found in a statute. More In legal research, the legal assistant should al- frequently, however, one must search for it in case ways cite mandatory authority whenever it can be law. Although a single case might state the govern- found. Persuasive authority should be cited only ing rule, often it is necessary to fashion a “new” rule when: based upon the legal principles that apply to similar • mandatory authority cannot be found; (though not identical) circumstances. • mandatory authority is unfavorable to the Cases which confront the legal issue in question client’s position; or, are said to be “on point.” But usually those cases have significant differences in their factual circum- • persuasive authority clarifies the application stance. The legal issue in question might be slightly of mandatory authority. 188 CHAPTER 8 Legal Analysis, Research, and Writing different from the issue at stake in the client’s case, quently used in court decisions. Negligence, fraud, but the legal issue must be close enough to have rel- strict liability and malpractice are examples of evance to the client’s case. When a case confronts terms of art. These terms will appear in indexes to the identical legal issue and is substantially similar in treatises and legal encyclopedias, and digests are all material facts, it is said to be a case “on all fours.” organized by topics identified by such terms. It is not unusual to find cases that raise the identical The statutes of most jurisdictions are organ- legal issue, but it is unusual to find a case that also ized into “codes” that include the laws on a given has substantially similar material facts. The over- topic, such as motor vehicles or education. If the whelming portion of legal research relies upon cases legal assistant does not have a citation to a specific which are on point, but not on all fours. code section, the key terms can be used in search- To make cases with factual differences rele- ing the topical index that accompanies most statu- vant to the client’s situation, one must apply logi- tory codes. When using indexes, the skilled re- cal methods, such as analogy. Analogy is a method searcher will try various alternatives until he finds for applying legal principles to different but similar the reference he seeks. If looking for the statutory factual situations. Analogy relies upon identifying duties of public school teachers, one might need to the similarities between two different situations, look under headings such as “school,” “teachers,” and then resolving the new situation by applying and “public schools.” the legal principle which was used in the earlier The official state codes provide the literal lan- case. Obviously, the factual similarities must lend guage of the statute, and little else. Much more use- themselves to application of the same principle, ful for the researcher is the annotated code. Fol- otherwise, analogy will not work. lowing each statute in an annotated code, the When the majority opinion is unfavorable to researcher will find brief paragraphs which sum- the position of the client, it is especially important marize court decisions interpreting or applying to read carefully any dissenting opinion. Although that code section. By reviewing those summaries, the majority opinion (i.e., the court’s opinion) is the legal assistant can identify court opinions of the only opinion that may be relied upon as a possible value for further research. There also precedent, concurring and dissenting opinions are might be authoritative commentary on the legisla- often helpful in understanding the legal issues at tive intent for that section. stake. Sometimes, the factual differences in the Court opinions are found in case reporters, client’s case can be distinguished from those in the bound volumes containing the published opinions court’s opinion, which creates a basis for arguing of a court, or of a number of courts. For example, that the same legal principle should not govern in the United States Reports is the official reporter for the client’s case. As legal thought changes over the opinions of the U.S. Supreme Court. Those same decades, a view set forth in an earlier dissenting opinions appear in unofficial reporters like West’s opinion might be adopted as the modern rule—as Supreme Court Reporter. The unofficial reporters happens when an appellate court overrules an ear- contain every word of the Supreme Court opinions. lier decision by that same court. However, they also contain editorial commentary not found in the official reporter. State court opinions are similarly published in official and unofficial reporters. West publishes the National Reporter Sys- Section 2. Legal Research tem of seven regional reporters, reporters for the For the less experienced, finding a starting point federal courts, and separate state reporters for the for legal research can be intimidating. Often, the at- courts of California, Illinois, and New York. Most torney will suggest a statute or court case as a secondary sources (such as treatises and encyclo- starting point. If the attorney and paralegal do not pedias) print a list of reporter abbreviations in the know of an appropriate statute or case, the parale- front matter of each volume. From that list the legal gal should begin with secondary sources: assistant can determine that “P.2d” refers to West’s Pacific Reporter, Second Series, or that “LE2d” • digests; stands for United States Supreme Court Reports, • treatises; and, Lawyers’ Edition, Second Series. • legal encyclopedias. A major challenge of legal research is locating case law that addresses the legal issue at hand. Di- When using such secondary sources, it is helpful gests are designed to help the researcher do ex- to have several “key terms” in mind. The most use- actly that. A digest is a multi-volume publication ful key terms are known as legal “terms of art,” that groups cases by topic (i.e., by the legal issues which have well-defined meanings and are fre- decided in those cases). Thus, cases on negligence STUDY GUIDE 189 law will be in one volume, and cases on breach of he will have to use a case citator, such as Shepard’s contract will be in another. Within those volumes, Citations, to verify that any cases relied upon are these topics are further subdivided to facilitate lo- still good law. cating cases on the “duty of care” under negligence The “paper chase” is the process of following law, or “specific performance” under contract law. clues found in annotated codes, digests, court Each court opinion (on specific performance, for opinions, and other sources until the researcher example) will be summarized in a brief paragraph, has found the legal authority that resolves the is- followed by a citation to that case. These sum- sue at hand. If the authority cannot be found in pri- maries are very similar to the case annotations mary sources, secondary sources must be used. At found in an annotated code of statutes. times, the courts rely upon secondary sources When using a digest published by West, each when they cannot find primary source authority. topic is identified by a Key Number that West has When a court explicitly adopts a legal principle assigned. The identical Key Numbers appear in found in a secondary source, that declares the other West publications. Thus, a legal assistant principle to be the common law of that jurisdic- can identify the Key Number for an issue and then tion. That court opinion then becomes primary use it to locate case summaries and citations in source authority for that principle. When courts other West publications. If the Key Number is not must rely upon secondary sources, most often known, the legal assistant can find his issue in a di- they cite a treatise. Over time, particular treatises gest by using the “descriptive word index” vol- have gained a reputation for their scholarly foun- umes that accompany the digest. dation and have become highly persuasive sec- When reading a court opinion, the legal assis- ondary sources. tant must be careful to distinguish the court’s ac- When leads are found to a very large number of tual opinion from the preceding editorial commen- cases, the paralegal must prioritize them in some tary. That commentary appears in a summary (or fashion so that she can efficiently use her time and syllabus) and in numbered headnotes. The sum- locate the more important precedents among them. mary and headnotes are not written by the court, Generally speaking, the following criteria can be and have no official standing whatsoever. They used (in descending order of importance): must never be quoted or relied upon as authority. • cases within the jurisdiction; The summary and headnotes are prepared by attorneys who work for the publishing company, or • decisions by the higher appellate courts; and, by the reporter of decisions (in an official re- • more recent cases. porter). Even in the latter case, however, they have So, the most recent opinion by the supreme court no legal authority. of the state that has jurisdiction over the client’s The summary is provided to permit the reader matter should be read first. If, as often happens, it to quickly determine if the case appears relevant turns out not to be on point, the researcher works to his research. If it is, the researcher will then read her way down the list of other appellate opinions the court’s opinion (which follows the headnotes). from that state. Finally, one must understand that The headnotes identify each legal issue that the a recent case from the supreme court of a different court has decided in that case. There is a separate jurisdiction has less value than an older case from headnote for each issue. The headnote numbers a mid-level appellate court of the client’s state. In appear in the body of the court’s opinion as a con- legal authority, jurisdiction always trumps both re- venience for the researcher. If headnote 7 ad- cency and appellate level. dresses the legal issue of concern, the researcher When valuable cases have been found, the le- can go directly to that portion of the opinion by lo- gal assistant must verify that they have not been cating the number “[7]” (within brackets and in reversed or overruled. This is done using a case ci- bold print) within the opinion. tator, such as Shepard’s Citations or West’s KeyCite. Having found and studied a court opinion on A case is overruled when the same court adopts a point, the researcher has just begun his task. Vir- contrary rule of law in a later case, and is reversed tually all court opinions cite legal authority to sup- when a higher court holds that a lower court’s rul- port their own legal conclusions. Most often, those ing was in error. Appellate courts commonly re- citations are to prior case law, although statutes verse lower court decisions, but do not often over- and other legal authorities are commonly cited, as rule their own prior holdings. well. To fully understand a pivotal case, the legal A second reason for using a case citator is to assistant will read also the key precedents cited in locate other cases that discuss the same legal that opinion, and he will locate later cases on the issues. Citators will identify later opinions that same issue and read those opinions as well. Finally, 190 CHAPTER 8 Legal Analysis, Research, and Writing discuss the issue in headnote 5, for example. Using layperson should be able to understand and follow headnote numbers with case citators is a key part the general concepts without any prior knowledge. of the paper chase. Citators also identify legal pe- For clarity, the writer should: riodicals which mention the case in question, and • use active language (not passive); those articles are often a treasure trove of analysis and case citations. • control sentence and paragraph length; If the citator reveals that an important case • use paragraph breaks as markers for content has been reversed or overruled, that usually development; means: • use concise language; and, • The case may not be relied upon as • revise and edit several times. precedent; and, These guidelines apply to all types of writing: legal • The case may not be cited as authority for the memoranda, client correspondence, contracts, legal principles stated in that opinion. and pleadings. However, many cases decide multiple issues, and a Pleadings are the fundamental documents filed reversal on one holding might not affect the court’s with the court in a lawsuit or other court proceed- holdings on other issues in that case. To be certain ings. Pleadings contain the parties’ allegations of about the opinion’s status as precedent, the re- facts and any legal claims or defenses. However, in searcher needs to read the later case in which it common usage, “pleading” is often applied to any was reversed. This is why one sometimes encoun- document filed with the court for the purpose of in- ters the statement “reversed on other grounds” fluencing the court’s management of the case or when a case has been cited as valid authority in a the ultimate outcome of the litigation. later court opinion. The format and content of pleadings are deter- mined by statute and/or court rules. For example, a complaint must always allege facts which give Section 3. Legal Writing the court jurisdiction over the defendant and the The most prevalent problem in legal writing is not subject matter of the lawsuit. A particular cause of the use of legal jargon, but a disregard for the ordi- action (e.g., breach of contract) requires allega- nary rules of good writing. Most obscure and inef- tions to support that cause of action. A new legal fective legal writing results from: assistant should begin to accumulate a form file (or pleading notebook) with copies of documents • poor organization; which have been filed with the courts. These can • excessive use of the passive voice; serve as exemplars for future pleadings, motions, • unnecessary and ineffective compound etc., which the legal assistant will be called upon to sentences; draft. These exemplars can be maintained on a computer if they are organized by the type of doc- • verbiage; and, ument so that they are easy to locate. • inadequate editing and revision. Legal assistants and associate attorneys are Of course, the unnecessary use of legal jargon sometimes called upon to “brief” a case. A case would only make the result worse. brief is a summary of that court opinion which can The beginning of good organization is knowing be quickly read and understood by an attorney the purpose for writing. Is it to inform or to per- who has not already read that case. A legal assis- suade? Is the intended audience the court, an at- tant can brief a case more effectively if he under- torney, the client, or some other party? Once the stands the facts and legal issues in the client’s le- objective is clear, the next step is the opening. In gal matter. A case brief usually includes the journalism, the opening is the headline or title of following sections: the article. In legal writing, it might be the heading • factual background; for a section within a pleading, or the opening • procedural history (if provided in the court’s paragraph of a memorandum. The opening should opinion); hook the reader’s interest and communicate the purpose of the document. • legal issue(s); Paragraph by paragraph, the document should • holding of the lower court (if stated in the lead the reader through a logical development of appellate opinion); the content. Except for unfamiliar legal concepts • holding of the appellate court; and, (e.g., “strict products liability”), any educated • reasoning of the appellate court. STUDY GUIDE 191

The factual background helps the attorney to com- erase the personal biases of judges, but the follow- pare the case to the facts of the client’s legal matter. ing guidelines are helpful for persuasive writing: The reasoning of the court helps the attorney to un- • Write clearly and concisely. derstand why the appellate court reached the conclusion it did. Since the holding itself has been sum- • Start with a statement or position agreeable marized in the prior section, this latter section must to the reader. summarize the court’s legal analysis which caused • Soften any bold statements that are likely to it to reach that holding. Inexperienced legal assis- arouse an unfriendly bias. tants tend to include more factual background than • Lead the reader gently and methodically necessary in their case briefs, and to shortchange toward the desired conclusion. the final section on the court’s reasoning. • Anticipate objections and refute them without While a case brief summarizes only a single antagonizing the reader. case, a memorandum of law brings into one document the holdings of various appellate court deci- • Quote authority the reader cannot ignore. sions. A memorandum of law is needed when the • Avoid any hint of arrogance, condescension, pertinent legal principles cannot be found within a or antagonism. single case. Memoranda are used as internal docu- • Remember that the reader should feel good ments that never leave the office, or they are pro- about adopting the client’s position. vided to clients. The memorandum of law is intended to analyze a situation with objectivity—it is The legal assistant must cite legal authorities in not intended to persuade. Consequently, it includes both types of memoranda. The court rules of most both favorable and unfavorable legal authorities. A jurisdictions follow the format prescribed in The common format for the memorandum is: Bluebook: A Uniform System of Citation, published by the Harvard Law Review Association. Although • summary of facts; its rules can appear daunting to the neophyte, most • legal question(s) presented; of these rules are never needed for the typical mem- • brief answer(s); orandum of law or points and authorities. • legal analysis; and, • conclusion(s). REVIEW QUESTIONS The legal analysis is often written in the style of 1. A primary source is a statement ______an appellate court opinion. Statutes, cases, and the law. A secondary source is a statement secondary authorities are cited. The conclusion ______the law. will state in summary form the result of the legal 2. Primary sources are mandatory authority analysis. when they state the law of that ______. Memoranda of points and authorities are simi- Primary sources from a different jurisdiction lar to memoranda of law, but they differ in three im- are only ______authority. portant ways: 3. The law of ______is the law governing • they are intended to persuade; civil wrongs that injure another person (e.g., fraud, slander, negligence, assault, etc.). • they are not objective; and 4. The IRAC method of legal research stands • they are intended for an audience outside of for ______, ______, ______, and the law firm (e.g., the court). ______. Partisanship is the distinguishing characteristic of 5. A court may ______its records to prevent memoranda of points and authorities. Trial briefs anyone from examining them without prior and appellate briefs are examples of memoranda of court permission. points and authorities. The points are legal propo- 6. Using the logical process of ______we sitions (arguments), and the authorities are cita- apply the same legal principle to different, tions to primary and secondary sources which but similar, fact situations. support those propositions. A good portion of legal writing aims to persuade. 7. When an appellate court justice differs from Of course, it isn’t always possible to succeed be- the majority on which legal principle should cause some things are beyond the writer’s control. be applied to a given case, she might write One cannot change the facts of the client’s case, nor a ______opinion. 192 CHAPTER 8 Legal Analysis, Research, and Writing

8. At times, it appears that an earlier precedent 21. A case is ______when the same court should govern the case before the court. But if adopts a contrary rule of law in a later case. the court determines that factual differences 22. A case is ______when a(n)______call for a different legal result, it is said to court holds that the lower court’s ruling was ______the case at bar from that earlier in error. precedent. 23. A ______provides citations to 9. A statutory ______is a collection of subsequent cases or publications which have statutes organized by topic. cited or ruled upon the case in question. 10. In a statute, an enumerated ______is a 24. Shepardizing is not complete until all current discrete provision, of one or more ______have been checked. paragraphs, which is to be read and 25. “Constructive fraud” and “private nuisance” interpreted as a whole. are examples of legal ______of art. 11. Published court opinions are found in case 26. A complaint must allege facts that give the ______, which are bound volumes court ______over the defendant and the containing the opinions of one or more courts. subject matter of the lawsuit. To avoid 12. The official publication for U.S. Supreme Court dismissal, the complaint must also allege decisions is the United States ______. facts that establish a valid ______of 13. Regardless of which reporter one is using to action. research U.S. Supreme Court cases, only the 27. A memorandum of ______is an objective ______reporter should be cited to the evaluation of a legal situation, and is used courts. within the law office. A memorandum of 14. The decisions of the federal District Courts ______is a partisan discussion which are published in the Federal ______. advocates the client’s interests. Decisions of the federal Courts of Appeals are 28. The court rules of most jurisdictions require published in the Federal ______. the citation format prescribed in The 15. Regional reporters for the courts of all 50 ______: A Uniform System of Citation. states are published by West as part of the ______System. 16. A ______contains brief summaries of KEY TERMS court decisions, organized by topic. annotated code 17. The text of published court opinions are Your “best effort” definition: preceded by an unofficial ______of the case, and by numbered ______that summarize the court’s holding on discrete Your revised definition: legal issues. Neither of these may be quoted or cited as legal authority. case of first impression 18. At the very end of an appellate opinion, the court states its ______of that case. Your “best effort” definition: 19. When a court explicitly adopts a legal principle found in a secondary source, it Your revised definition: effectively declares that principle to be part of the ______law of that jurisdiction. Thereafter, that case may be cited as a case brief ______source for that legal principle. Your “best effort” definition: 20. When a very large number of cases have been identified for review on a specific legal issue, the legal assistant should prioritize them Your revised definition: according to the following criteria (in descending order of importance): 1) cases from the client’s ______; dictum 2) cases from the ______appellate Your “best effort” definition: courts; and, 3) the more ______cases. Your revised definition: STUDY GUIDE 193 headnote parallel citation Your “best effort” definition: Your “best effort” definition:

Your revised definition: Your revised definition: key number persuasive authority Your “best effort” definition: Your “best effort” definition:

Your revised definition: Your revised definition: mandatory authority pleading Your “best effort” definition: Your “best effort” definition:

Your revised definition: Your revised definition: memorandum of points and authorities pocket part Your “best effort” definition: Your “best effort” definition:

Your revised definition: Your revised definition: memorandum of law primary source Your “best effort” definition: Your “best effort” definition:

Your revised definition: Your revised definition: on point secondary source Your “best effort” definition: Your “best effort” definition:

Your revised definition: Your revised definition: on all fours stare decisis Your “best effort” definition: Your “best effort” definition:

Your revised definition: Your revised definition: overrule Your “best effort” definition:

Your revised definition: 194 CHAPTER 8 Legal Analysis, Research, and Writing

WORKING ON-LINE said that there is no place for unethical paralegals in the practice of law. Go to the terrific Web site, “Barger on Legal Writ- How should you handle this situation? ing,” which Professor C. M. Barger (University of Arkansas, Little Rock) maintains for law school students: ETHICAL ANALYSIS http://www.ualr.edu/~cmbarger “There is no place for unethical paralegals in the practice of law.” It’s pretty difficult to argue with Follow the link for “One-L Help” [One-L 1st year that proposition. But what does that suggest your law student] and explore the pages and links under own ethical obligation to be in this situation? “Class Preparation.” Try an interactive tutorial on The instructor is absolutely correct in saying briefing cases or using the IRAC approach for legal that it is plagiarism to use another’s words as research. For a treasure trove of research tips, though they are your own. It is also lazy, and it scroll down to “De-Mystify the Tools of Legal Re- avoids the skill development that comes from par- search.” aphrasing the court opinions in one’s own words. In your own mind, you also realize that you would be ETHICAL CHALLENGE committing a fraud upon the instructor if you sub- mitted plagiarized text as though it were your own. It is not unusual for paralegal students to study Several issues arise here: together and to collaborate in working through their homework assignments. Experienced teach- 1. While it “appears” that your classmate is ers appreciate this cooperation because they committing plagiarism, are you absolutely know that students often learn as much from each positive? other as they do from the instructor. Of course, 2. If it does prove to be plagiarism, do you have this “cooperation” should not include copying an ethical obligation to report that offense to homework or otherwise avoiding the learning ex- your instructor? periences an assignment is intended to provide. 3. Would it be possible to convince the Student-to-student collaboration works best classmate to eliminate any plagiarism from when it helps one another to discover the path- the paper she ultimately submits? ways to success. However, collaboration can also reveal the un- 4. Do you have an ethical obligation to “police” ethical conduct of an errant classmate. How would the ranks of prospective paralegals and you handle the following situation? ensure that the unethical candidates are Your instructor has given a fairly simple re- discovered and dropped? search assignment. You and your classmates are If there is no plagiarism, there is no apparent to select a statutory section from the state penal ethical problem. But, is it any of your business code and read several of the cases found in the even to inquire or investigate that question? If your following annotations. You are then to write a answer to questions 2 and 4, above, are “Yes,” then summary of how those court decisions inter- you might have an ethical obligation to determine preted or applied that statute. As usual, your whether plagiarism is occurring. It certainly would group of “regulars” are seated at a table in the be unethical to make unfounded accusations. So, if county law library on Saturday morning, working you believe you have an ethical obligation under on the week’s assignment. Each of you has se- questions 2 and 4, you need to explore the issue of lected a different statutory provision, but you are plagiarism. If you believe that you do not have any sharing questions, comments, and ideas about obligations under those questions, you could ig- how to complete the assignment. Gradually, you nore the situation. become aware that major portions of a class- Whatever your belief about reporting cheaters mate’s paper appear to be copied word-for-word —and without trying to confirm whether plagiarism from the court opinions, without attribution or is actually taking place or not—you could initiate a quotation marks. discussion among your regulars about the issue. A The situation makes you uncomfortable be- question such as, “Why does the instructor make cause the instructor has insisted that all quota- such a big deal about us copying from the court tions be clearly indicated. He also has made it clear opinions?” should generate some useful discussion. that he considers anything less to be plagiarism. If the consensus is that cheating is O.K., then your Finally, to sink his point home, the instructor has group is in serious need of individual ethical self- evaluations, and one would wonder why they are in- STUDY GUIDE 195 terested in becoming paralegals. If the opposite con- if the court determines that factual sensus occurs, then your classmate might feel de- differences call for a different legal result, it is terred from submitting a plagiarized paper. said to distinguish the case at bar from that There is more value in deterring or reforming an earlier precedent. offender than in catching them at the crime. If a re- 9. A statutory code is a collection of statutes port must be made, it might be best to suggest organized by topic. anonymously to the instructor that additional em- 10. In a statute, an enumerated section is a phasis be placed on plagiarism in a class discussion. discrete provision, of one or more paragraphs, which is to be read and READING CASE LAW interpreted as a whole. The complete text of Olmstead v. United States, 277 11. Published court opinions are found in case U.S. 438, 48 S.Ct. 564 (1928) is printed here. This is reporters, which are bound volumes the case excerpted in Chapter 8 to illustrate a vig- containing the opinions of one or more orous dissenting opinion that prophetically stated courts. legal principles the Court would adopt as the law 12. The official publication for U.S. Supreme of the land many years later. The Olmstead court Court decisions is the United States Reports. split 5-4 on this decision. 13. Regardless of which reporter one is using to The dissent by Justice Brandeis articulated a ra- research U.S. Supreme Court cases, only the tionale for excluding illegally obtained evidence. official reporter should be cited to the courts. Read the majority and dissenting opinions in Olm- 14. The decisions of the federal District Courts stead. Then, read the Supreme Court’s opinions in are published in the Federal Supplement. Berger v. New York, 388 U.S. 41 (1967), and Katz v. Decisions of the federal Courts of Appeals are United States, 389 U.S. 347 (1967), the cases in which published in the Federal Reporter. the Court overruled its earlier decision in Olmstead. What do you believe accounts for the Court’s sea- 15. Regional reporters for the courts of all 50 change in constitutional interpretation? states are published by West as part of the National Reporter System. 16. A digest contains brief summaries of court ANSWERS TO REVIEW decisions, organized by topic. QUESTIONS 17. The text of published court opinions are 1. A primary source is a statement of the law. A preceded by an unofficial summary of the secondary source is a statement about the law. case, and by numbered headnotes that 2. Primary sources are mandatory authority summarize the court’s holding on discrete when they state the law of that jurisdiction. legal issues. Neither of these may be quoted Primary sources from a different jurisdiction or cited as legal authority. are only persuasive authority. 18. At the very end of an appellate opinion, the 3. The law of torts is the law governing civil court states its disposition of that case. wrongs that injure another person (e.g., 19. When a court explicitly adopts a legal fraud, slander, negligence, assault, etc.). principle found in a secondary source, it 4. The IRAC method of legal research stands for effectively declares that principle to be part Issue, Rule, Application, and Conclusion. of the common law of that jurisdiction. Thereafter, that case may be cited as a seal 5. A court may its records to prevent primary source for that legal principle. anyone from examining them without prior court permission. 20. When a very large number of cases have been identified for review on a specific legal issue, analogy 6. Using the logical process of we apply the legal assistant should prioritize them the same legal principle to different, but according to the following criteria (in similar, fact situations. descending order of importance): 7. When an appellate court justice differs from 1) cases from the client’s jurisdiction; the majority on which legal principle should be applied to a given case, she might write a 2) cases from the higher appellate courts; dissenting opinion. and, 8. At times, it appears that an earlier precedent 3) the more recent cases. should govern the case before the court. But 196 CHAPTER 8 Legal Analysis, Research, and Writing

21. A case is overruled when the same court 26. A complaint must allege facts that give the adopts a contrary rule of law in a later case. court jurisdiction over the defendant and the 22. A case is reversed when a(n) appellate/higher subject matter of the lawsuit. To avoid court holds that the lower court’s ruling was dismissal, the complaint must also allege in error. facts that establish a valid cause of action. 23. A citator provides citations to subsequent 27. A memorandum of law is an objective cases or publications which have cited or evaluation of a legal situation, and is used ruled upon the case in question. within the law office. A memorandum of points and authorities is a partisan discussion 24. Shepardizing is not complete until all current which advocates the client’s interests. supplements have been checked. 28. The court rules of most jurisdictions require 25. “Constructive fraud” and “private nuisance” the citation format prescribed in The are examples of legal terms of art. Bluebook: A Uniform System of Citation. STUDY GUIDE 197 198 CHAPTER 8 Legal Analysis, Research, and Writing STUDY GUIDE 199 200 CHAPTER 8 Legal Analysis, Research, and Writing STUDY GUIDE 201 202 CHAPTER 8 Legal Analysis, Research, and Writing STUDY GUIDE 203 204 CHAPTER 8 Legal Analysis, Research, and Writing STUDY GUIDE 205 206 CHAPTER 8 Legal Analysis, Research, and Writing STUDY GUIDE 207 208 CHAPTER 8 Legal Analysis, Research, and Writing STUDY GUIDE 209 210 CHAPTER 8 Legal Analysis, Research, and Writing STUDY GUIDE 211 212 CHAPTER 8 Legal Analysis, Research, and Writing