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Chapter 5 Legal Reasoning Research and Writing For International Graduate Students

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150 views16 pages

Chapter 5 Legal Reasoning Research and Writing For International Graduate Students

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Jalin Bailey
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© © All Rights Reserved
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Chapter 2 described two research skills: (1) finding a given legal authority, and researching a clier problem, It also described two interpretive skills (1) under- Sanding the rlative weight of each authority and (2) legal sythesis (understanding to interpret autharity nd apply it toa given problem or situation). Chapter 2 “then explained the fire research skill and the fst interpretive skil. Chapter 3 explained “he second interpretive ski: how to interpret or synthesize authority and apply i to any given situation. Atthis point, you should be able to locate an authority when given citation or even a partial citation, and you should have some understanding of ow to Combine various sources of authority, interpret them, and apply them toa particular problem. ‘Aleran explanation ofthe ethical and practical demands faced by attorneys doing “egal research in the Unite States, this chapter begins development ofthe remaining research ski: locating authority when given a situation or problem. First it describes the process of legal recarch, and then it divides situational research into three stages. ‘Stage I research, which consists of background research into secondary sources, is al ‘covered in this chapter, and a Stage I checklist is given. The chapter also includes several advisory discussions, including «comparison of research media, hints on how ‘tostay ontrack and avoid tangents, and methods for planning research projects. Stages :2and 3, how to ezeach and update primary authority, are covered in Chapters 6 and 7."The thre chapters combined will help you develop your skls in researching US. ‘aw given a specific cient problem or situation. ut Cape 5. The Resch Process I. ETHICAL AND PRACTICAL DEMANDS. Each of the 50 United States sts standards of ethical behavior for attorneys and ‘most of them have enacted some version of the American Bar Association's Mode Rules of Professional Conduct. Failure to fllow these rules can lead to disbarment, a wells civil liability for malpractice. One of the most important of these rules is tht lawyer shall represent clients comperently, which is defined as having the “legal know edge, sil thoroughness, and preparation reasonably necessary for the representa- tion." nthe United States, an attorney can be sued if he ot she fails to know “those plain and elementary principles of aw which are commonly known by well informed atorneys”or fails to discover additional rues tha although not commonly known, may readily be found by standard research techniques."” Thus, legal rea part and parcel of an American lawyer’ skill For a given client's problem, the lawyer must find the necessary mandatory authority helpful and persuasive primary authority, and useful secondary authority However, researching law in that sequence— mandatory, primary, secondary —is usualy difficult, if not impossible. It is better to research secondary authority frst, then mandatory, followed by persuasive authority. Tobe thorough, the researcher may hhave to backtrack more than once: One is much more able to loeate authority that is exactly on point, whether primary or secondary, when one i feria with the specific area of la at issue. ‘Often law students idalistically expect that the law Grm that eventually employs {hem will have them work only on problems in their area of specialization, ora easton problems involving areas of law they have studied. Students who specialize in intellec- tual property, for example, expect that their employer wil give them only problems involving intellectual propery. Infact, because of business needs, most aw frms must accept the cases that are presented to them, regards of the are flaw st sue (though there are some areas, such as family practice, that may requite specialization). ‘The partner responsible for the case then delegates resatch to the associate who has the most time avaiable, regardless of the associate's area of particular interest and specialization. Occasionally, as a reward for work well done, & partner vil tke an associate's interests into consiration and assign the associate a casein his or het area of interest. However, most partners are unable to do this on a regular basi ‘The result is thatthe vast majority of recent law school graduates usually find them- selves reseatching problems in areas of the law they never studied in lave school, Consequently it is important to develop skill and confidence in researching areas (of law that are new to you. 3 Mode ale of Po Con 1 190. Se Des of dion of he ode ues of Profesional Conduct, Centr for Peassonal Responsibly, at wovwsbuneconglepeenpd lh hl (sting state adoption dae) Sin Li 880 2d 889 (Cal. 1973). RESEARCH PROCESS searching 8 client's situation, the goa sto locate all applicable mandatory dhony, aswell asthe best persuasive and secondary authority, as efficiently as an esearch isa proces, however, and cannot be reduced to a simple method- Piss inherently inefficient and a researcher can easily be led in any number of Girecions. Therefore, the researcher must maintain control over the See constantly focusing on obtaining the best match between law and fact, ie, eeregon ocating the law tats most on point Tis easy for inexperienced esearch- Mabaleve that they have completed their esearch when they Found something that ror less applicable, Standard research techniques require thatthe attorney find rincple thats well tailored to ithe fact pattern as closely a posible. “More apliableisinsuficiet. tn order (ogo from moro es applicable exactly on ina reasonable amount of time, the researcher must maintain control over the proces. TNaintaining control means thatthe researcher must be systematic, methodical, a yood record -keper. An cay and systematic way to maintain conel so divide paces into thre stages, The frst tage involves analyzing the problem, obtaining ‘d information, and planning the ressarch. The second stage involves ching primary authority the final, third stage includes updating the authority band reorganizing the esearch, and filing in any research gaps that appear following nization. As the lowchart on the next page shows, however, research rarely [smoothly from one step into the nest. The researcher should expect to zigzag rand forth somewhat among steps. This is normal and appropriate. What is most nts however, isthat the researcher know atl times where shes, where she has pyand where she is going. MI. RESEARCH ADVICE Media Choices “Tefore we addres the various components of Stage I research individually, ani pth discussion of media choices will be helpfl. Media available may include hard ‘op, Internet sources, and posibiy CD-ROM or microforms. Many LLM. candidates to the United States eager to focus on what is perceived to be an extremely isicated Internet-based legal research system, and thisbookis written with exactly focus in mind. However, efficient researching means taking best advantage of the ble media choices, Ar discussed in Chapter 2, diferent media have different tages and disadvantages, even when they cover the same source. For example, United States Code is tre same, whether in hard copy, on Westlaw, on LEXIS ‘on Loisaw, or on aU.S. government agency’s Web sit, However, researching (Chapter 5 The Reser Posse RESEARCH FLOWCHART + Datermine Preparation and background research: + Analyze facts + Develop research terms and intial query + Devoiop preliminary research plan| + Research secondary sources + Revise query Stage 1 ‘area of law, urisaiction x b--- + Fil any research gaps + Prewnte Stage 3 + Verity, uodate and analyze research + Verity analysis with further secondary authority, as needed st Reach Advice M5 toe US.C maybe easier orharder dependingon which mea thing foram ethos ster on computer oweves 8 earache obo infomation fom an autor by PINE see shook or ening abrd-opy printout than by ering Gon ad eros afin put ototsin te milf FS Ha ica to ret. Frtermoe computer dab oO cme die orth apr onde mater POPS ee 1 eon of te dase, nes 1 cme inl pra nr coghh Weslo and EXISinclde US Supreme Cont Pe We out, the law review databases on both major ce aren approximately 198, Law reve aes fo, erated in ar coy of petap on HeinOnline a eh mpotant co be aware of and conser the compare toe age of various media when developing «reach Pa mot efit and mes wher computer sein re times when hard-copy research fs inberent advantages. sc un to having varius research advantages and disadvan, rata or financial advantages and diadvanags thet Tom oe Pepould consider in deciding which resources hey wan 917) 1f LEXIS are the most widely wved E ‘fit is unlikely that you ee pe pon completing our LLM. ee, ou might wan 1 28 si ong veearh sls using noncommercial database stil tke ar neataw and LEXIS while they are avaable to you fee of chara ara gals you wil develop withthe commercial dtabases ca be Wet te wll not have s many oF 35 abies nding ta) as othe commercial one, and vp ates end cass vil be more dificult. 1 Comparison of Fee-Based Computer Databases “thre ar wo fall-est online Kal information systems that wl be ental > soon aurea eduction, Wes and Lexis are get sinviting NEE Fee cpl efron, Ech cotsns the fltext of ud opinions as, aarti rules and more relate pl information tha any thee Hae cer hope oboe. You wil gt ome sco n-peion PS Ba al ee hee and even an 800 number to il fr ese aan aie engeged inte equivalent of World Wide Wrestling Fee Pe Much fox market sat. They want ou to ov them hat Pe sre hol ou wi want to usd py them ll pe fo) he ode "This makes life good fr la students. eng Blabeth & 2 dingo Reserch Suva Moma 9200) (is onc “trae Dok b very beh M6 Chapter 3. The Research Mocs ‘The two most widely used computer databases are Weslav.com and Lexis

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