RESEARCHING AND PRESENTING LEGAL PROBLEMS A Suggested Approach.
-
Upload
baldric-lucas -
Category
Documents
-
view
229 -
download
2
Transcript of RESEARCHING AND PRESENTING LEGAL PROBLEMS A Suggested Approach.
RESEARCHING AND PRESENTING LEGAL PROBLEMS
A Suggested
Approach
w.03 2
Legal Research-Basics
Many correct ways to research, choose method with which most comfortable
Remember to Be thorough Be efficient Be comfortable
w.03 3
Legal Research-Basics
Thoroughness-make use of all relevant tools and materials within context of available time.
Efficiency-be able to work quickly, in a complete manner while avoiding review of ground already examined.
Comfort-feel one’s system is accurate and does what is required to produce a quality work product
w.03 4
Legal Research-Basics
Tips/suggestions (see Chapter 12 in text) Learn exactly what your supervising attorney
wants doneKnow what issues are to be researchedKnow what laws and materials researcher is
expected to useKnow what are time constraints (keep in
mind 60/40 rule)
w.03 5
Legal Research-Basics
If necessary educate yourself on facts of case and relevant law If oral briefing be sure to take detailed notes
and immediately review same Examine legal encyclopedia or similar tool if
unfamiliar with area of law being researched
Establish initially and maintain open line of communication with supervising attorney
w.03 6
Legal Research-Basics
Ask for permission to come back with questions
Share research approach before beginning actual hands on work
Seek permission to make periodic progress reports
Once plan of action is developed-stick to it-avoid diversions (only divert for very good reason)
w.03 7
Legal Research-Basics
Know the law library being used-tools it contains-its limitations etc. West Publishing? Bancroft-Whitney? Both? More than one set of tools one plans to use? When is it open? Are there times when
crowded? under used? Best area law libraries King County (Saturday
mornings) University of Washington (late afternoons)
w.03 8
Legal Research-Basics
“Perfectly on-point” case or statute may not exist and in some cases there may be no law pertaining to the subject being researched. Are there laws which can be applied by
analogy? Are there laws which arguably apply (spirit of
the law, what law is trying to accomplish)? Look to other jurisdictions Seek help from supervising attorney or others
w.03 9
Legal Research-Basics
Volume does not always equal wisdom Quality of cases counts more than quantity Usually constitutional law prevails over
statutory which prevails over case/common law Usually federal law prevails over state law
which prevails over local law Laws or cases which have been in force a long
period of time normally require less support than newer laws.
w.03 10
Legal Research-Basics
Know when to stop (it is usually not possible to examine all resources which may be of help) Budget your time at beginning of research
project and stick to one’s deadlines. Don’t focus on one set of issues at the expense
of losing time to examine other materials or for writing and proofreading what one plans to submit.
w.03 11
What Constitutes A Good System For Research
Most important elements are thoroughness, efficiency and comfort
There are many right ways to research
Use the system that feels right for you
Don’t feel forced to accept a system of research but don’t overlook good tips, from time to time experiment
w.03 12
What Best Research System Does
Analyzes the problem being researched (see problem analysis)
Lays out and records where one has searched (see source and search sheet)
Records fruits of one’s search in an easy to use manner (see information sheet)
w.03 13
Problem Analysis
What it should do Help researcher know what to research Prevents doing too much or too little Gives researcher an idea of types of materials
which are to be examined
Used to isolate and identify exactly what is to be done.
w.03 14
Problem Analysis
Purpose to isolate and identify exactly what is to be researchedFirst step Analyze the fact situation and divide it into the various issues that need to be researched. Look at this closely and ask what precisely am I
being asked to research? Keep in mind this information may be provided
by supervising attorney or in written memo (one may be given specific questions to answer)
w.03 15
Problem Analysis
Second step Examine the issues and restate them in the form of questions or what are called primary interrogatories Err on the side of being complete, better to
have more than fewer primary interrogatoriesThird step if possible, review problem analysis with supervising attorney.Be sure to reserve space on problem analysis in event other primary interrogatories arise.
w.03 16
Problem Analysis
Example From Exercise
1) . Can our client Q resist an extradition request from Texas which is based on a letter stating client was convicted of a crime and escaped from jail?
2) Is the fact the Texas penal system is being sued by better government groups for violations of the United States Constitution grounds for resisting the Texas extradition request?
3) Does the law offer any other ways in which we can assist our client Q?
w.03 17
Source And Search Sheet
Purpose Determine how to go about search Identifies materials to be used Helps keep track of areas researcher has
covered Records key words and phrases which help
access research tools
Complete source and search sheet before beginning research-have an organized approach
w.03 18
Source And Search Sheet
First Step Write the primary interrogatories (each primary interrogatory should have its own page-write primary interrogatory at top of sheet of paper (see model)Second step Ask the following for each primary interrogatory?: Are there issues re constitutional law (federal, state, local)? Are there issues re statutory law (federal, state, local)? Are there issues re common law (federal, state)? Are there regulations (federal, state) which apply? Are there other sources which should be used? Be as complete as possible
w.03 19
Source And Search Sheet
Third Step List under each primary interrogatory the type of law to be researched, the materials to be used in order to find that law and list type of law and materials in order of importance (strongest types of law first)
Remember numerous laws could apply, check with supervising attorney to make certain source and search sheet is not overly broad
Complete entire sheet prior to starting research
w.03 20
Source And Search Sheet
Example Can our Client Q resist an extradition request from Texas which is based on a letter stating client was convicted of a crime and escaped from jail?Federal constitutional law-USCA/USCSState constitutional law-RCW/Tex. Stats. Ann.Federal statutory law-USCA/USCSState statutory law-RCW/Tex. Stats. Ann.Regulations, Common Law also may apply
w.03 21
Source And Search Sheet
Start with first primary interrogatory and begin with first listed resource List various key words used to access resource Record any relevant information (this will be
discussed in detail with Information Sheet) Cross out or check off each listed resource as
work on it is completed
w.03 22
Information Sheet
Purpose to record relevant laws and cases uncovered by one’s search Provides information on what has been found
and where Use in conjunction with source and search sheetFirst step list each primary interrogatory on the information sheet (use a full page for each primary interrogatory-extra sheets can be inserted if necessary-use loose-leaf notebook or folder with brackets)
w.03 23
Information Sheet
Second step Go through source and search sheet starting with first primary interrogatory checking each reference to constitutional, statutory or other form of law within the source listedThird step Record on the information sheet under the relevant prime interrogatory all references to laws or cases that appear to be useful. Review the references and then decide if the
particular law is worth recording and possibly using.
w.03 24
Information Sheet
Fourth step Make notes (description of law) on or (better yet) photocopy relevant laws and append these to the information sheet Where photocopying is used make a note under
the Primary Interrogatory identifying the law and giving the attached material a reference (e.g. IA=First relevant law under First Primary Interrogatory IIIB=Second relevant law under Third Primary Interrogatory, etc.)
w.03 25
Information Sheet
Example Can our client Q resist an extradition request from Texas which is based on a letter stating ….?
Source-United States Code Annotated (Reference-Cruel and Unusual Punishment-8th Amendment)
No cruel and unusual punishments may be inflicted 8th Amendment US Constit. See Attachment IA
w.03 26
Information Sheet
Go through entire source and search sheet recording relevant laws on information sheetWrite legibly and clearly making certain sheet is thorough, clear and easy to useOnce research finished information sheet is useful in helping one organize written memorandum of law Primary interrogatories help identify issues to
discuss/Order laws are listed in may determine order for discussion purposes
w.03 27
The Legal MemorandumGeneral
Law firms use legal memoranda for many purposes: To provide insight into the law re case currently
being handled; and To help lawyers decide if case should be settled
or pursued; and To serve as a source of information in similar
cases which may arise later;
w.03 28
The Legal MemorandumGeneral
Lawyers use legal memoranda for many purposes. Good memo: Allows a lawyer to secure a quick, very quick or a
detailed answer to to a legal problem Allows a lawyer to know the facts (or what researcher
thought were the facts) of the matter Allows lawyer to know with what laws were searched Allows lawyer to know what researcher thinks is the
answer to the issue or matter at hand-shows researcher’s thought process.
w.03 29
The Legal MemorandumStructure
The Heading
“To” “From” Self-Explanatory
“Re:” Try and condense in one to three sentences what entire memo concerns, draw a conclusion This may be a very clumsy sentence key is that it
convey useful information
Date Remember legal memoranda often go into a memo bank to be used in event similar cases arise in future.
w.03 30
The Legal MemorandumStructure
Sample “Re”
OUR CLIENT Q'S RIGHT TO RESIST A DEFECTIVE EXTRADITION REQUEST; THE STATE GOVERNOR'S RIGHT TO DENY SUCH A REQUEST AND CALL FOR A LOCAL PROSECUTORIAL INVESTIGATION AND RECOMMENDATION PURSUANT TO WASHINGTON STATUTORY LAW; POTENTIALLY RELEVANT FEDERAL CASE LAW
This could be improved by adding information re defective letter and the federal case.
w.03 31
The Legal MemorandumStructure
Facts Purpose lets supervising attorney know what
one is basing their research on, what researcher thinks took place
Focus on relevant issues determine what are facts which have an impact on the law being researched.
Try and keep this to 1-2 paragraphs
w.03 32
The Legal MemorandumStructure
Facts-ask what is relevant to the case Contents of letter? Who sent letter on behalf of
Texas? Whether letter came first class or special delivery? Fact that governor made follow up call on issue?Information that client has reformed self?
When Green Party incorporated itself? Gender make up of state committee, county committees? Position on environmental issues? Percent of votes in last election?
w.03 33
The Legal MemorandumStructure
Short Answer Purpose to let the reader quickly know the
answer to what has been researched and to identify the laws which lead to the answer
Keep this section short don’t rival discussion in length (2-3 paragraphs)
Draw conclusions where law is clear, explain where law is uncertain
w.03 34
The Legal MemorandumStructure
Short answer should start with most important issue in terms of client-issue which will have most impact (use primary interrogatories/info. sheet) More than one possible right answer as to what is most
important issue to client
Start by stating one’s conclusion along with the applicable law and then move on to next most important issue. 10.88.220-10.88.210-10.88.230-Pacileo??
w.03 35
The Legal MemorandumStructure
Sources Purpose allows reader to know what one has
researched (along with what one has not) and used for basis of opinion
Order of listingFederal law (constitutional, statutory,
regulatory-case-US Supreme Ct-Circuit Cts. Of Appeal-Dist. Cts.)
State law (constitutional, statutory, regulatory- case-Supreme , Cts of Appeal)
w.03 36
The Legal MemorandumStructure
Local law (constitutional, statutory-regulatory)
Non-legal sources (any studies, statements from third parties or any other materials employed as part of the memo)
w.03 37
The Legal MemorandumStructure
Discussion Purpose issue by issue examination of relevant
law, lets supervising attorney know what laws apply, what issues they apply to and how, it is an in depth discussion of relevant law
OrganizationConsult problem analysis (make use of
primary interrogatories) and information sheet.
w.03 38
The Legal MemorandumStructure
Organization of discussion Determine what is most important issue to
discuss based on laws found and what client wants Use problem analysis and information sheet
as aidsMay wish to consult supervising attorneyConsider outlining all issues to be discussed
(and laws within each issue), examine outline and decide if this is way to proceed
w.03 39
The Legal MemorandumStructure
Organization of discussion
Example of discussion outline Most important primary interrogatory
Most important applicable lawSecond most applicable law etc.
2nd most important primary interrogatory Most important applicable lawSecond most applicable law etc.
w.03 40
The Legal MemorandumStructure
Organization of discussion
Writing the memo (most impt. law 1st primary interrogatory C (Conclusionary sentence) Start with strong lead
sentence which is conclusionary and then employ normal IRAC method when explaining how law applies to a particular issue (use this approach as a guide to insure discussion of law is complete)
I (Issue-facts which make this law applicable) R (Rule)-synopsis of relevant law
w.03 41
The Legal MemorandumStructure
A (Analysis) Apply facts to law C (Conclusion) Draw a conclusion, explain what is
likely result
Discuss laws on a particular issue in descending order of importance then go to next issue
Use strong language when possible, remember we are an advocate for our client
If uncertain of result or how law may apply say so
Proofread, Proofread, Proofread
w.03 42
The Legal MemorandumStructure
Example (Conclusionary statement) The request for extradition sent by the Texas governor
is defective under RCW 10.88.220 because it does not contain everything required by this law.
Example (Non-conclusionary statement) The Texas governor’s extradition request might be
found in violation of RCW10.88.220 because it is not complete-more documents may be required than were sent.
w.03 43
The Legal MemorandumStructure
Example (Uncertain how law may apply) The Pacileo case seems to offer an opportunity
to attack the extradition request based on the potentially unconstitutional status of Texas penal institutions. While Pacileo clearly states challenges to the constitutionality of another state’s penal institutions are barred once an extradition order is signed, nothing is said about what could be raised prior to signing…”
w.03 44
The Legal MemorandumStructure
Example (Uncertain how law may apply) The Green Party may or may not be a major
political party to which Washington statutory law requiring gender equality in the make up of state and county committees applies (see RCW 29.42.020 and .030). The key statutory provision is RCW 29.01.090 which defines major political parties as those receiving five percent of the vote in the last….
w.03 45
The Legal MemorandumStructure
Conclusion-NOT NEEDED FOR THIS CLASSPurpose to tell the supervising attorney what will happen or what researcher believes will happen based on law which were found Organization keep this section short, do not cite laws, write answer in layperson’s terms, based on research this is likely result…REMEMBER GOOD MEMO WRITING REQUIRES CONSTANT PRACTICE