Exam Flashcards
LDC
Legal Discourse Community
The Communication Triangle
(1) Reality (Objective writing)
(2) Reader (Persuasive writing)
(3) Writer (Expressive Writing)
(4) Language (Literature)
Kinds of Writing
(1) Either objective or persuasive; rarely creative or expressive
(2) voices: strategist, advocates
(3) audience: inform, counsel; clients, judges, other lawyers
Recursive Process
Planning-Drafting-Revising-Final Editing
Common Writing Errors
(1) Pronouns
(2) Subject/verb agreement
(3) Comma Splices
(4) semi-colons
(5) Colons
(6) Commas
(7) Its/It’s
(8) Floating “this”
(9) comparing like to like: cases to cases; situations to situations
Planning Strategies
(1) What questions should this doc answer
(2) What is my answer to each question (no more than a few words)
(3) Who is my reader?
(4) What is my reader’s relationship to me?
(5) How much does my reader know about the subject and my answer
(6) What is my reader’s attitude about the subject and about my answer?
(7) What does my reader need to know to understand my answer? List in need to know order
(8) Why am I writing this (to inform, to persuade, to accomplish some other end)?
(9) What constraints do I have?
Basic Principles
(1) Achieves its designated purpose for its specific audience: For whom is doc intended?; What will that person do with it?
(2) Immediately gives its reader an overall picture of what the doc is about (question and answer): supply context
(3) Easy to follow: paragraphs fit together: topic sentences; subtitles for guidance
(4) Easy to read: shorter sentences; well-structured long sentences
Legal Process
Client Problem-Memo-Opinion Letter-Complaint-Answer-Pretrial motions-Judge’s decisions on pretrial motions-Trial-Decision-Appeal-Appellate briefs-Appellate opinions
CREAC
Context/Conclusion: Heading A gives the Conclusion for the first sub-Rule
Rule: synthesized rule from relevant cases
Explanation of the Rule: facts, holdings, reasoning from applicable cases
Application of the Case Facts: compare/contrast facts w/ cases
Conclusion: last sentence in the last paragraph of subsection A is the final C in CREAC
Umbrella
Introduction
(1) provides basic underlying law (statute)
(2) pulls out elements required for a cause of action
(3) applies case facts to the requisite uncontested elements
(4) shows readers what elements are not in contention
(5) focuses on elements at issue in the order to be discussed
(6) may provide a conclusion to the contested elements
Unclear and too long, the judge has ordered us to rewrite the brief
MM: The judge ordered us to rewrite the unclear and lengthy brief.
The judge agreed to admit the evidence with misgivings.
MM: With misgivings, the judge agreed to admit the evidence.
New attorneys who attend depositions often gain confidence.
MM: New attorneys often gain confidence by attending depositions
4 ways to ID a legal question, and later relevant search terms, when a client generally presents a problem?
(1) develop research questions using just the facts of the situation including the conduct, the mental states of the parties
(2) generate search terms in terms of people, places, and things
(3) using legal relationship of parties
(4) type of location
(5) asking abt potential claims and defenses and relief P is seeking
Pre-Search Filtering (2 reasons)
(1) the less pre-search filtering= the more sifting you have to do after obtaining info
(2) limits search techniques
5 factors that can affect pre-search filtering
(1) Jurisdiction; (2) type of authority; (3) Subject area; (4) date, (5) level of court
3 search techniques to retrieve a doc
(1) citation; (2) search by subject; (3) word search
Natural Language v Terms and Connectors
terms and connectors: Boolean: literal search; control results more precisely; useful as an initial search
natural language: literal search; no specific relationship among terms; retrieves pre-determined # of docs
Boolean priority
OR- numerical and grammatical proximity connectors (/N, /P, /S)- AND- exclusion connectors (AND NOT, BUT NOT)
Post-Search Filtering
(1) general document: jurisdiction and type pf authority
(2) Specific content: by subject; search terms w/in doc
3 ways to narrow search
(1) adding terms that were not part of initial search; (2) focusing on particular terms that were not part of the initial search; (3) changing relationships b/w words
Is research ever done?
no- law constantly changing; recursive process; research done when come full circle
no results or too many?
use secondary sources, rethink search terms; understand the problem
secondary sources
help w synthesizing large amounts of authority; point you in the right direction
snippets (bad)
out of context; actually not helpful; inadvertent plagiarism
4 main sources of law
(1) fed and state constitutions; (2) case law; (3) statutes; (4) regulations and ruling issued by government agencies
primary authority
authorities that actually constitute law; federal case law- created by entity that has legal power to do so; primary authority may be binding/mandatory or non-binding/persuasive
secondary authority
authorities that explain or comment on primary- law review article; good way to begin; lead to primary authority; some supplemented like ALR and legal encyclopedias; periodicals not
binding primary authority?
primary authority that is binding is mandatory in a particular court- IA case will not bind TX case- only persuasice; TC SC binds TX TC; SCOTUS binds everyone
legal citations
authority to support assertions- persuasive; give credit to author- disclaim credit
4 times secondary sources imp.
(1) unfamiliarity w law; (2) nonbinding primary authority but don’t know how to narrow jurisdictions; (3) undeveloped area of law; (4) saves time
limits of secondary sources
(1) not binding authority and generally should not be cited; (2) may not be current- updated less frequently than primary sources; (3) cannot substitute for your own analysis
3 types of commonly used secondary sources
legal encyclopedia: general overview; treatises: narrower focus and history of the development; Restatement: restate com law rules w comments
Codes (official v. unofficial; annotated v. unannotated)
official: govt arranges for the publication of its laws; not updated as often and usually do not contain annotations; unofficial: commercial publisher; same subject arrangement as official code; USCA; annotated: contains text of the law and diff types of research references; unannotated: only txt of the law and maybe reference’s to history of statute
Reporter
collected written opinions published in chronological order in a book; sometimes limited by jurisdiction
4 ways to locate cases
(1) print or online reporter; (2) commercial services: WestLaw; (3) free internet sources: FindLaw; (4) Google Scholar
editorial enhancement
include a synopsis of the case summarizing key points of the case; summaries are called headnotes- not written by the court; not primary authority
non-precedential opinion
kind of “unpublished but bit of a misnomer bc of internet; authoritative value is under debate; still valuable research tools
digests
research tool that organizes cases by subject instead of chronologically and provides summaries
citator
help you find if a certain case has been cited elsewhere; help determine case is still good law
direct v indirect history
direct: refers to all of the opinions issued in conjunction w a single piece of litigation; indirect: refers to an opinion generated from a diff piece of litigation than the original case
Thought Process for Legal Research
(1) What question do I need to answer?
(2) How can I use the information I already have to focus my research?
(3) What criteria should I use to evaluate what I find?
(4) How can I use what I find to locate more and better information?
Determining primary authority as binding or non
(1) jurisidiction
2) weight of case (level of court
Online Resources
commercial online services: accurate and up-to-date; can be expensive; unreliable longevity
Print Resources
more cost effective; understanding print can be more effective to becoming legal researcher; context=better; legal citations require page numbers
Legal Encyclopedias
(1) contain articles summarizing the law on almost every legal topic
(2) organized alphabetically by topic
(3) may also reference the West Key Number system
Examples: Am. Jur.; CJS; state-specific encyclopedias
American Law Review (ALR)
(1) annotations that describe the law on various topics; (2) longer than encyclopedia entries, but narrower focus; (3) articles accompany selected reported case- chronologically; (4) hit or miss; (5) digest or index
Treatises
Books written on specific legal topics: scope may be broad (torts) or more narrow (sexual discrimination); within the treatise, organize by subtopic
Legal Periodicals
(1) search for articles using (legal trac; encore (searches Hein and Legal Trac and other databases); Westlaw/Lexis
(2) Find PDF full text
Restatement
distill and codify com law rules for specific subject; reflect consensus of the legal community; provide commentary on trends; probably most persuasive secondary source- published by ALI; selected topics (Ks, Property, Torts)
Research Tips and Strategies
(1) begin research w secondary sources can save valuable time and resources; (2) book versions more user-friendly; (3) select most effective source for your issue; (4) state law issue?- include practice materials in search
Statutory Authority
primary authority; can be mandatory/binding or persuasive; update: check Shepard’s or KeyCite to see if it’s still good law; statutory annotations to find all cases that interpret provisions
Published Statutory Law (3 kinds)
(1) Legislature enacts a law, and it is published as a SLIP LAW
(2) At end of legislative session, all laws enacted during session are published in chronological order in SESSION LAWS. Federal publication is Statutes at Large
(3) Laws are then organized by SUBJECT MATTER in CODES: FED CODE has 53 subject matter titles
American Court System
State TC-Intermediate Appellate Courts (39/50)- State SC- SCOTUS
Us District Court (94 trial courts)- US COA (13 Circuits)- SCOTUS
Case Reporter System
(1) chronologically
(2) organized by jurisdiction: state reporters, regional (state:7) reporters, federal
(3) most reporters have an associated set of digests classifying cases by subject
Researching cases
(1) online text box is the most inefficient way to search (narrow using jurisdiction, court level, and Boolean)
(2) more effective: find one good case that internally cites other cases
(3) ways to find that case: secondary sources; statutory annotations; key numbers and digests
West’s Topical Digest System
450 legal topics; subtopics called key numbers; topics assigned numbers for research; each hard copy digest edition covers a specific range of years: check pocket parts for updates
Steps
(1) understand client’s legal question and formulate into possible search terms
(2) decide where to start research; what is mandatory and persuasive authority
(3) start searching: using pre-search filters
(4) update research using citators
