Class 1 - Beginning Legal Research

hello everybody I'm Loreen parrots and I would be your professor for advanced legal research I'll go a bit more into my background during the first class for now though I just want to let you know that I practice law for over 20 years so I have a really good feel for how to conduct legal research in the real world and I plan to make that the focus of this class if I don't think you're likely to face a particular issue or use a particular research technique in practice then I'm not going to waste our time on talking about it in this class after all you get plenty of theory in your other classes so here we're just going to stick to the nuts and bolts of how to work through research problems that you're likely to face in the real world so here's how I plan to structure the class every week you'll be watching a video just like this one where I'll introduce you to the topic that we'll be talking about that week statutes case law corporate transactions litigation resources etc then I'll demonstrate the resources that you can use when you have a question in that area and then after we get to class I'll give you some legal research exercises so you'll get a chance to use the resources yourself these kind of rect exercises really are the best way to learn legal research techniques they're much more effective than me just lecturing at you so we're going to be doing a lot of them as we work our way through the semester that being said it is absolutely vital that you watch the video each week before you come into class it's often going to be the first thing we do in class is diving into researching a legal problem doing an exercise and we'll be relying on the information and the resources that I'm going to present in the video lecture if you haven't watched the video then you're not going to know how to approach the problem for that week I promise that the videos are always going to be short the longest one is no longer than a half hour and they'll often even be shorter than that so just make sure you watch them also please make sure that you submit your questions to the quiz each week these weekly submissions are going to count towards your 20 professionalism and participation points for the semester more on that when we're into the first class and we go through the syllabus alright so here's our first legal research problem you're working at some big law firm in Manhattan and late Thursday afternoon you get a call from your senior partner telling you that he's about to go on a wine tasting and buying holiday in Napa he's a connoisseur by the end of his trip he wants to have filled up his expensive climate-controlled wine cellar he makes the decision that he actually wants to buy wine and nap and ship it home to his brownstone in Brooklyn he thinks he's going to get some great deals in Napa it suddenly occurs to him at the last minute and it always does seem to occur to the partners at the last minute that he wants to ship them home but he's not sure it's legal that is our private individuals even allowed to ship wine across state lines he's concerned because he vaguely remembers something about some case or some statute that said he either could or you could not ship the wine he can't remember the details so he tells you that you should take a look at the issue and give him some legal guidance before he leaves for his trip specifically can he ship cases of wine home to himself or not if he can are there limitations on what he can't ship he also wants to know what law governs this issue is it California New York federal law and then where do you find the answer to this kind of legal issue is it case law statute regulations something else maybe a combination of all three so this is a good example of the kind of problem we'll be doing as we work our way through the semester you need to read the information presented and identify the legal issues research the issues to the best you can giving the resources that we're covering for that week and try to reach some kind of preliminary legal conclusion then we're always going to spend some time talking about however how everybody did we'll discuss what problems you had what roadblocks you ran into when you were doing the research you're going to have to be ready to do a lot of participation in this class that's a small class so we spend a lot of time talking about how everybody approach the research what worked what didn't you can talk to each other while you're doing the research I'll be walking around the class while we're researching so it's a very active class alright so now let's spend a minute talking about how do you go through the process of a legal research problem like the one you see here what are the first steps how do you develop a legal research plan how do you effectively and efficiently conduct legal research and how do you formulate advice here are you going to send the partner off on his wine buying spree with a happy face or not so for the other classes we'll dive right into the research but since this is the first class we're going to spend a little time talking about the process how do you break the problem down how do you analyze it and how do you formulate the answer so you can present it to a senior lawyer or to a client so as I said just before we get started with how I might research this wine shipping problem let's spend a minute talking about the legal research process in general when you first start out in practice you're likely to get your research assignments from a more senior lawyer that you're working with either a senior associate or a partner later on as you become more senior you'll get your research assignments directly from clients so in either case your first job is to make sure that you really understand the facts and the issues that you need to research before you leave that senior attorneys office or before you hang up with the client on their frantic phone call this is just a practice tip it's harder than it sounds to actually do this but it's vital lawyers are busy and they tend to be rushed at the best of times they forget they generally forget that you don't know everything that they do and I just don't mean the law they may already know everything about their clients business for example and they forget that you don't know everything about the clients business so they start talking in shorthand it's something that's not going to make sense to somebody who hasn't been representing that client for a while so what do you do you have to be strong you have to insist that those senior lawyers spend a few minutes to fill you in on the problem and the issues that they want you to focus on believe me they will like you the better for it in the end because you'll give them better research result also when you get back to your office you also need to avoid the temptation to just start researching just like get docked your office and turn on less lines start researching instead you should first make sure that you've read and you understand all the documents that you've been given so for example if you're researching an issue involving a corporate agreement read the agreement if you're a litigator read the complaint or the other documents on the file if the client has written a letter requesting legal help read back call them if something doesn't make sense obviously you're not calling them to ask for help with the legal issues you're calling to ask for help and interpreting the facts something doesn't make sense there's a term you don't understand there's a business that doesn't seem like ittsan call and ask call the client call the senior attorney everybody is going to be happy in the end sounds like a no-brainer but it's sometimes tempting to dive right into research before you fully understand the issue and avoid that temptation it's going to cost you in the end so the next step after you do your interview and you feel like you've got a good handle on what the facts are is this is where you're kind of actually going to begin doing your research and it's to look at a secondary source to help yourself understand the law in the area that you're researching this step is probably the single best piece of advice that I'm going to give you for the whole semester reading case law statutes regulations primary law conducting legal research in other words is really hard tedious and confusing work it just is that's probably why you're all taking this class that is after all why they pay lawyers the big bucks if it was easy nobody we'd willing to pay lawyers or hundreds of dollars an hour to do this stuff anyway so the trick to doing really good legal research is use a good secondary resource first to teach themselves about the area of the law they're researching primary resources of the law itself cases statutes regulations etc secondary resources are anything that explains the primary law things like legal encyclopedias Law Review articles blog posts etc and don't worry we'll be spending the next two classes exclusively discussing all of these secondary resources and why you would use one instead of another what one does that the other one doesn't but for now it's just enough that you get a handle on how secondary resources fit into the research process use them first and then move on to the primary law after you've used a secondary resource to learn the area of the law that you're researching then go ahead and read the primary law you will be amazed how much easier it is to understand and apply primary law after you've consulted a good secondary source secondary sources will also of course point you to the relevant primary law so if I'm researching a securities law insider trading issue a good secondary resource is going to explain to me all the specifics of that area of securities law and it's also going to give me site for all the relevant cases statutes and regulations so I can easily go and pulp the primary law and Westlaw Alexis Bloomberg or some other database in print if I want so the last step in the legal research process as you see here on the slide and this is critical update everything you cite to or rely on before giving your legal opinion every single time even if you're just giving an off-the-cuff oral response to a legal research question and this happens a lot you'll get a call from a senior lawyer or client and they don't want a memo or a long answer and even even an email they just want a quick answer over the phone for assignments like this though and if you don't want to commit malpractice and I know you don't you still need to make sure that the law that you're relying on is still good law it doesn't matter for these purposes whether you did an hour of research and you're giving five minutes of advice over the phone or if you're writing a brief or a detailed memo you still need to know that the law you cite and rely on is good law after all it isn't uncommon for cases to be overruled or for statutes to be appealed or amended fortunately we have great tools on lexis and Westlaw like shepherds and keysight that allow us to do this kind of updating fairly painlessly so you can take statutes case law and regulations to Wes or Alexis whichever one you have at your firm and confirm that you're only citing good law well spend a fair amount of time discussing these tools in future classes as well so don't worry about the specifics for now again we're just seeing we're updating fits into the overall process of legal research so in a nutshell that's the legal research process this really is the best process to follow each time you have a legal research problem I can honestly promise you that you'll have an easier time and better results if you follow this process when you conduct your legal research it doesn't really even matter what the question is or what area of law you're researching just follow these basic steps and you'll be on your way all right so it's just to get started let's talk about primary law here is a very brief overview of the US legal system fortunately you already know most of this already it course it goes without saying that you must have a basic understanding of the US legal system before you can attempt to find a specific law to answer a specific legal question that you've been asked to research so again as you all already know the federal government is divided into three branches and as it happens each branch creates law that we must be concerned with as legal researchers the legislative branch or Congress creates statutes the judicial branch including the highest court in the land the Supreme Court issues opinions and this body of opinions is called case law the executive branch and the various executive branch agencies and departments create regulations and other administrative determinations and adjudications and this body of law is called administrative law as lawyers whenever we try to help a client solve a legal issue we have to be thoroughly familiar with each of these three sources of law of course we'll cover all of these areas of primary law in much more detail as the semester goes along but it's important to note that sometimes these different kinds of law will overlap sometimes they even contradict each other and this is in practice and it's our job to work our way through this thicket in order to advise our clients on how to proceed so to make matters even more complicated than that in the United States there's two parallel systems of law federal law and state law state law making is also usually comprised of statutes case law and administrative law and again these sources of law can overlap and contradict each other and they also sometimes overlap and contradict federal law is that clear now is it easy no but again this is why they pay lawyers the big bucks all right so let's talk about the actual steps that you would follow when you're conducting legal research and this kind of goes back to the slide we had about the process as I mentioned before you get started researching you need to define the scope of your project are you writing an appellate brief or you're writing a memo to a partner or you returning a phone call sometimes the quick phone call is all that's needed you need to know that before you start researching and billing time in fact it's a good idea to come right out and ask this never bothered me at all when I was a senior lawyer in fact I appreciated it because sometimes the senior lawyer might forget so you should ask how much time should I devote to this project law firms hate writing off time so it's better to know ahead of time how much time you should be allotting to a particular research project or any kind of project even if you're drafting an agreement get an idea of had a time of what they think is reasonable you can always go back and tell them later that it's not working out and you need more time their answer may only be a ballpark no more than three hours but at least you'll know that you're not going to spend a whole day on that case or that agreement so here's another practice tip asks lots of questions when you first get the research assign you'll save yourself time you'll save your client money and you'll turn out a better legal research product if you insist on getting all the facts you need to narrow the issues and tuck your legal research right from the start so once you have your arms around what kind of response you're going to be responsible for a brief a corporate agreement a phone call you have to get the facts that you need to start your research and we've talked about this a little bit in an overview but now we're kind of narrowing down on some of the issues so the next thing you need to do is take the time to develop a research plan before you ever open a book or look at an electronic research database like Lexus or Westlaw you need to figure out what legal issue you're researching because no one's going to tell you that unlike Law School clients don't come in and tell you what the legal question is that they want answered they just present you with facts and it's up to you to figure out what the issue is and then to go ahead and research it so this is how you get started you do issue spotting you look at the facts and you figure out who what when where why and how you can ask yourself some of the questions on this slide this is going to help you to start figuring out what is the issue what is the problem and then once you have a handle on that you move on to the next step and that next step is you develop a list of key terms search terms you develop these terms use in your search for the answer to your clients legal problem and it doesn't matter whether you're searching on the internet or you're searching on a paid legal research platform like Lexus Westlaw Bloomberg law etc you want to have a list of search terms to input into whatever platform you're using to conduct your research coming up with a few good key terms ahead of time helps you to craft a search that's going to give you fewer results but that are more highly relevant you really don't want to run something like a typical Google search where you return hundreds of thousands of documents it is much better to run a high-quality search and return 30 documents that are all highly relevant so this means you have fewer things to look through but the ones that you do look through are more likely to answer your questions sounds good right so here's how you do that how do you come up with these magic keywords that are going to get you those results and here's four ways that you can do it you can use a dictionary like Black's Law Dictionary or illegal thesaurus to find terms of art in the area you're researching race it's ilaqua or detrimental reliance things like that it's how the experts are talking about a particular issue and you're more likely to return documents that are exactly on point if you have the keywords so that's one way to now down on the the way that a cause of action or a particular corporate concept are being written about you can also use a website that discusses your issue this can be like a US government agency website so you can see how a particular area of the law is framed and discussed by the experts you could talk to the person giving you the assignment and that's not a bad idea just ask them how would you approach this research where would you search what terms would you use and they'll take the time to tell you what they would do if you ask they probably won't take the time if you don't ask though so you should ask and if all that fails you can always try brainstorming by jotting down as many synonyms and related words as you can come up with coming up with synonyms is important because different legal research platforms use different terms for the same legal issues I mean you can easily see this for example an issue relating to a minor can be found under children minors infants parent and child so if you know that you can construct a search that takes all of these alternatives into account that way you won't miss anything important but you'll still have an efficient search the next step is to figure out what law applies so you can go ahead and conduct your research this is not actually that easy to do because there's no way to know when you're first getting started with legal research what law is likely to govern a particular issue is the law governed by statute case law administrative law civil criminal federal state law may be a combination of some or all of the above so let's see how we figure this out let's go back to our senior partner who wants to ship cases of wine home from Napa what type of primary law is going to apply statute case law administrative law a combination of all three is it federal or state law and remember it's likely that the legislature the courts and the executive branch may all have touched on a topic that you're researching so for a wine buying trip what's the jurisdiction is the wine shipment governed by federal or state law if we determine that it's state law and here it is is it the law of the ship from state here it'd be California or the ship to state here would be New York that's going to matter that's going to govern our issue okay so let's move on and talk about how you determine all of us and the best way I think to get through the maze of determining what primary law applies is again to use a good secondary source as a reminder secondary sources or anything that you use to learn about primary law secondary sources reign from informal blog posts for example say by a practitioner you know attorneys practicing write about the area that they're practicing all the time on their firm websites and in their individual blogs so they range from that kind of level of informality to a multi-volume treatise written by say a harvard law professor on contracts or torts or employment law or something so as I mentioned above earlier in the presentation determining the apical law is hard when you're first starting out after practicing in an area for a while you'll have an idea of whether it's New York State statutes the governor particular issue or maybe federal regulations or where you need to go but when you're first starting out or even if you're a seasoned attorney researching an area that you're not familiar with so you're you've been out practicing for a while but you've moved into a new area of the law secondary resources are almost always the way to go they can help point you in the right direction so when you read them they'll give you an explanation of an area of the law so that when you later read the primary law your statute or your cases or your regulations you'll already have the benefit of an expert explaining the law to you and giving you a framework for understanding your issue secondary sources also give you citations and even better an electronic research they often give you leaks to the primary law so not only they giving you a citation you can click on the link and actually be taken directly to the primary law so if you read a few good secondary sources and you start seeing all these citations to the New York Public Health law for example you'll know your issues govern State statute and you'll have a slate to the particular provision in McKinney's where you can find your answer so secondary sources are giving you the relevant law explaining it to you and telling you where you don't have to search so if I find an issue is governed by New York public health law you don't have to waste my time in the US code or the Code of Federal Regulations all right the last step and I really can't say it enough and never forget to do this even if you're giving a quick off-the-cuff answer over the phone is to always make sure that the law you're relying on has been updated once you find the primary law that answers your question you know you found the right statute you have the right group of cases you need to use the Site ATAR such as Shepherds or keycite to make sure that the law you rely on is still good law keep in mind you can update not only cases but also statutes and regulations and we're going to spend a lot of time talking about all of the different ways you can update the various categories of primary law as the class moves along just for now know that you can't ever skip this step all right so now let's actually put all this theory into practice let's actually do some legal research here's just one possible approach to researching whether our senior partner can go wild in Napa and ship cases of wide home to Brooklyn and that is our issue does a law allow him to do that or not so you probably may have thought that a la librarian would never suggest going to Google but I use Google all the time both when I was practicing as a lawyer and now as a law librarian particularly when I'm first starting to research a legal question so I wanted to introduce you to how I use it I kind of incorporated it into the steps that I showed you before I incorporated it into my legal research plan I use it to issue spot I use it to come up with key terms so here I'm going to be using Google as a secondary source and we're going to use that to teach ourselves this area of the law of course that's reportin to remember that you can never end with a google search because on the internet anybody can say anything and you really can't trust any of it but to get started it's a really good thing to use use it to try and figure out what area of the law governs your issue federal versus state case law versus administrative law you know and once you get some idea of that or even better if you get some actual citation to the primary law governing your issue you can take that information over to West law Lexus or some other authoritative source like a government portal and you working to retrieve the primary law so you can verify for yourself what the law says all right so I'm going to actually run my google search and there you can see I've given you a screenshot I put in why shipping direct-to-consumer and I've gotten what looks to be a pretty interesting hit just the first non advertisement hit down which is this state shipping laws for wineries portal so I'm going to go ahead and click on that and it turns out that this website is an excellent resource to help us figure out this our wine shipment issue if you look here you can see that the site contains the wine shipment laws for all 50 states now if I go ahead and click on New York I can see that the site provides a goldmine of information it's giving me a summary of New York law for shipping wine it's giving me contact information it's even giving me a State Liquor Authority advisory opinion on about direct shipment of wine for out-of-state wineries sounds like just like what we were looking for so this is a great example of how using a good secondary resource makes legal research so much easier it usually works even better if you're using a high quality secondary resource like a treatise devoted especially to the area you're researching so moving on we have all of this information about state shipment and direct sales to winery visitors and now we're going to see if we can get some information for the senior partner so now I'm to the point where I actually have to review the primary law I've gotten a background in it I've gotten some citations through this SLA visor II the State Liquor Authority advisory and I'm going to actually take a look at that advisory and I see that this advisory explains New York law regarding Interstate wine shipment in detail as a bonus the advisory is giving me a citation to the specific New York statute governing direct wine shipments all right I'm not going to be able to stop there though this SLA advisory might be out of date it might have been repealed there might be additional information that I need to know so now it's time for me to go and read the actual text of the primary law so to get to to ABC 79 see I can go to wax law I can go to Lexus or I can get the statute directly on I'm from New York State all the states now have their statutes online for now though let's just use what's law to find 79 C so here's how I get to it on Westlaw starting from the homepage I go to state materials select New York and then remember I always want to use the smallest database I can so that I get fewer results but more highly relevant so since I know I'm looking for statute so I click on statutes and court rules and then I kind of just navigate my way through the ABC law until I eventually get to 79 C then I pull up the law I take a look at it I interpret it and I figure out the answer that I can give to the partner tell him whether he can ship wine home from Napa or not and what is that answer well according to ABC 79 C in order for a New York resident to directly accept delivery from an out-of-state winery that out-of-state winery must hold a New York out-of-state direct shippers license so the Napa winery is going to have to have one of these licenses from New York State also that out-of-state winery can ship no more than 36 cases of wine per year to any one individual the New York resident must buy the wine for their personal use they can't resell the line to someone else a liquor store just anyone else and finally the delivery of wine must be accepted by somebody who's over 21 years old and so those are the conditions assuming that the senior partner and the Napa winery he visits can comply with these conditions the news is good he can go on his wine buying spree and he can ship the wine home to his Brooklyn brownstone ok so you have good news for the senior partner so how do you go about framing your answer and this is how I would do it I would give them the good news first you can go on his trip and you can ship the wine home and then I would tell him but you need to make sure that you and the shipping wineries comply with a few conditions in the ABC law and this is how I would summarize those conditions for him make sure the Napa winery holds the appropriate New York steak license the partner will also need to make sure that he doesn't buy any more than 36 cases from any one winery that may or may not be a problem for him but that's a condition for direct shipment so I'll have to live with the limit he also needs to make sure that he's buying wine for his own personal use he can't resell it at his wine club or something and he needs to make sure that someone over 21 is going to be available to receive the shipment when it arrives at his home in Brooklyn and that's it those are the conditions if he can comply with the conditions then he can go have fun and Napa and ship his wine home so that's it that's one legal research problem from beginning to end and you saw how we followed kind of a twisty path from the free Google search where we did a broad search and then it got pointed in the right direction by a wine industry portal which is perfectly fine as long as you verify the law yourself the Internet can be a great place to start it's free so you can save some money by running preliminary searches the only thing is you need to make sure that you don't end there you always have to verify the primary law yourself on Lexus or Westlaw or some other credible source now some other things about legal research every research product has a different starting point a process and a conclusion there is no one right path for every question you might follow a different path than me and we might end up in the same place and that's okay it's important to realize that all of this so you don't get frustrated thinking that research is always supposed to work in the same way because it's not and it doesn't there's always going to be some false starts dead ends and revisions and these will vary from project to project unless you get really lucky when you research you're going to come to a place where you hit a brick wall and you're going to have to go back either all the way to the beginning or just back a couple steps and start over and try something else this won't happen is often when you get more experience with the issues and the resources in your particular practice area but believe me it still happens regularly even to experienced lawyers the last thing I'll mention is the hardest we can never really say that legal research is finished I mean just think of the wine buying problem that we just looked at sure we could keep looking are there other licenses that New York has are there other cases some other statutes some other secondary resources that we could look at for sure but at some point you need to realize that you've answered the question you've been given and an experienced researcher will know when to stop some of the signs I use when it's time to stop as I start seeing different sources citing to the same primary law different sources interpreting the same law in the same a you know of course this is true with everything else that I've mentioned in this lecture this all gets easier with experience for now though you can kind of use those signs as your goalposts to know when it's time to stop alright so that's it for the video presentation hopefully this is going to give you some good ideas about how to approach a legal research problem with the steps that you have to follow to solve that problem for your client we're going to have a whole semester to practice this and we'll start off in the first class using some of the techniques that I've introduced here to research a different issue for our client just one last thing before you go which is to make sure that you take the week 1 quiz it appears at the end of this video lecture keep mind that these quizzes are going to count towards your participation points that you receive for the class so you want to make sure that you do them every week and that you submit them and that's it I look forward to meeting you all and I'll see you in class

Channel: Loreen Peritz

Views: 117,545

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Id: J3RET96bpVk

Length: 29min 43sec (1783 seconds)

Published: Tue Aug 23 2016