Legal Analysis, Research, and Writing
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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 sig- nificant, 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.