Westlaw Research Strategies

How to Use Print and Online Legal Resources To Your Best Advantage

West’s Instructional Aid Series

THE LEGAL RESEARCH PROCESS

CONTENTS

• Introduction

• From Facts to Issues

• Controlling Statute

• Expanding Research

• Identifying Cases to Cite

• Ensuring Currency and Validity of Law

• Conclusion

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INTRODUCTION“(R)esearch requires the poetic quality of the imagination that sees significance and relation where others are indifferent or find unrelatedness; the synthetic quality of fusing items theretofore in isolation; above all the prophetic quality of piercing the future by knowing what questions to put and what direction to give inquiry.”

Frankfurter, “The Conditions for, and the Aims and Methods of, Legal Research,”: 15 Iowa L.Rev. 129, 134 (1930).

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INTRODUCTION• Legal research is an art as well as a skill. It calls for

judgment and creativity along with mastery of a set of tools and techniques.

• Each research question will have a different starting point, process, and conclusion.

• Every research project will include false starts, dead ends, and revisions.

• There is never one “right” path. Researchers choosing different paths for the same research question may be equally successful.

• Legal research is never “finished,” but the experienced researcher recognizes when to stop.

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INTRODUCTION• The starting point of research depends on the

nature of the issue, how it is presented to the researcher, and the researcher’s experience.

• The starting point for research may be a fact pattern, a subject, an issue, a case, or a statute.

• At the outset, determine if your research will be exclusively in case law or if there are statutes or regulations that should be explored.

• Determine whether your research will be primarily in federal law or state law, or both.

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INTRODUCTION• Research often begins with a fact pattern. You

might be given an “on-point” case or statute, but seldom will the facts of your research question fit squarely with the facts of other cases or the language of the statute.

• A client relates a narrative for which he feels “wronged” but has no legal theory to justify or deny compensation.

• This is when your paralegal training will come into play. It is extremely difficult for someone untrained in the law to translate a fact pattern into a legal theory of recovery or defense.

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FACTS

State ISSUE Federal

FACTS

THEORY OF RECOVERYOR DEFENSE

CASE LAW STATUTORY LAWREGULATIONS

CONSTITUTIONS

SECONDARY SOURCES

DigestsKey Numbers Annotations

THEORY OF RECOVERYOR DEFENSE 7

INTRODUCTION

• Introduction






• Conclusion

CONTENTS

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Ronnie, a salaried driver for the Acme Corporation, was unloading goods at a customer’s loading dock. Ronnie and the customer began to argue about whose duty it was to move the goods into the store. Ronnie shoved the customer. The customer fell and was injured. The customer is suing Acme for compensation for his injuries. Acme employs you to represent the corporation in the upcoming negotiations or litigation.

The case is filed within the jurisdiction of the state courts of Louisiana.

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FACTS TO ISSUES – FACT PATTERNS

• These facts must be translated into a legal issue(s).

• This is one of the hardest part of legal research for the beginning researcher. Legal resources are seldom organized by facts; they are organized by legal theory.

• You will need to identify terms of art that might apply to this situation.

• You will need to learn the “black letter” law –statements of principles that govern the particular area of the law. Black letter law will give shape and limits to your research.

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• The parameters of your research may later have to be broadened, tightened, or shifted, but it is reassuring to start out with a map of the area you will be exploring.

• Your thinking about the legal issues presented by a particular set of facts is likely to change as you learn more about an area of the law. Remain flexible.

• Once you are familiar with the relevant terms of art and black letter law, you should be able to articulate your issue more precisely.

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• There is no right or wrong way to begin your research.

• In the past, researchers had no choice but to conduct legal research in print resources. The last few years have witnessed the tremendous growth of online legal research.

• Neither is the “better” method. One might work better than the other in this situation. You won’t know until you get started.

• In all likelihood, you will move back and forth between print and online resources during the research process.

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FACTS TO ISSUES – RESEARCHING IN PRINT OR ONLINE?

• When confronted with an unfamiliar area of the law, many researchers find it easier to use print resources (such as legal encyclopedias, restatements, and practice guides) to get an overview, set parameters, learn the terms of art and black-letter law.

• Print materials have a satisfying way of organizing and limiting research. They naturally set boundaries within the law that the seemingly endless and seamless materials of online legal materials cannot provide.

• Print materials can impart a sense of orientation, the feeling that you have found what you need to get started.

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FACTS TO ISSUES – PRINT RESOURCES

FACTS TO ISSUES – PRINT RESOURCES• One exception to the generalization that print

resources are often the best place to start research is when the case is dependent on a particular detail. – If the case rests on the fact that the vehicle involved was a

farm tractor, standard print indexes and table of contents will not be organized around farm tractor cases. A full text online search for farm tractors and injuries may retrieve cases that can be the starting point for research.

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• You might start with a well respected secondary source, such as:– a treatise– West’s Nutshell Series– West’s Black Letter Series– American Law Reports (ALR)– a legal encyclopedia, such as American Jurisprudence (AMJUR)

or Corpus Juris Secundum (CJS)

• Published study outlines often do not contain the clear analysis of contradictory outcomes needed for a full understanding of the issue.

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FACTS TO ISSUES – SECONDARY SOURCES

FACTS TO ISSUES – SECONDARY SOURCES• All of the print products listed on the previous

screen are secondary sources.

• Secondary sources– Are written by legal experts.– Lay out general principles of law along with exceptions

and variations to that law.– Are a source of citations to primary law (cases, statutes,

and regulations).– May be cited to support a legal theory, especially in an

emerging or rapidly changing area of the law where there is no primary law available.

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FACTS TO ISSUES – SECONDARY SOURCES• Once you have found a secondary source or two that you

trust, check the index and table of contents.– Many indices are designed with entry words that allow a

researcher unfamiliar with an area of the law to find the appropriate sections.

– The hierarchy of the materials listed in the table of contents will help you move from general to specific issues.

• What you are looking for:– Terms of art that apply to the facts– A statement of the generally accepted principles of law, often

called “black letter” law – Enough understanding of the broader aspects of the issue to set

parameters for your research17

• The Table of Contents of Torts in the Nutshell Series has a section titled, Employers, Employees and Contractors.

• This section introduces and defines the following terms:– Vicarious liability– Scope of employment

or course of employment


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Employers, Employees and Contractors


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Vicarious liability is a form of strict liabilityby which A is held liable to another for the tort of B for no reason other than that thereexists some relationship between A and Band B was acting within the scope of that relationship when he committed the tort. The overwhelming number of vicarious liability cases arise from the employer-employee relationship.

…(S)cope (or sometimes “course” or “scope and course”) of his employment … is also a question of fact for which no very useful test has been devised. All of the surrounding circumstances must be considered, including (1) the employee’s job description or assigned duties, (2) the time, place and purpose of the employees act, (3) the similarity of his conduct to the things he was hired or authorized to do, or which are commonly done by such employees, and (4) the foreseeability of his act.

FACTS TO ISSUES – SECONDARY SOURCES• Torts in the Nutshell Series discusses the general

black letter law that applies to the vicarious liability of employers for the acts of their employees.– Once it is determined that the tortfeasor was an employee

at the time he committed the tort, his employer is vicariously liable if his conduct is within the scope of his employment.

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FACTS TO ISSUES • You have found relevant terms of art and black letter

statements of the issue which enables you to determine the focus of your research.

• The fact that the assault was an intentional act and whether the act was in furtherance of Acme’s business and foreseeable will be important considerations.

• You can now lay out the broad parameters of the issue and state the issue using appropriate legal terminology.

• You must persuade the court that Ronnie’s intentional act was outside the scope of his employment.

• You must also anticipate the arguments of your opponent.

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FACTS TO ISSUES • When Ronnie assaulted the plaintiff, was he acting

within the scope of his employment with Acme?

Two Step Determination

• Torts in a Nutshell lays out two questions that will help you determine if Acme is liable for Ronnie’s actions.– Was Ronnie an employee at the time of the accident?– Was Ronnie’s conduct within the scope of his employment?

• The second step will be the focus of your research, as there is no issue as to Ronnie’s employee status.

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• Introduction






• Conclusion

CONTENTS

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• Now you are ready to explore employer vicarious liability in more detail and retrieve relevant primary law.

• The next step is often searching more detailed secondary sources or case law, but another option is to see if there is a controlling Louisiana statute.

• Because you have learned the terms of art that are often used when referring to this issue, a Natural Language search in the Louisiana Statutes Annotated database (LA-ST-ANN) on Westlaw may be a good way to find relevant statutory law.

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CONTROLLING STATUTE

CONTROLLING STATUTE • The Natural Language search method allows you to use

“plain English” to retrieve relevant documents. Just enter a description of your issue and Westlaw will display the documents that best match the concepts in your description.

• Natural Language searching is often an most effective way to search annotated statutory databases because:– The text of a statute is often obscurely worded by the legislature

and the flexible nature of Natural Language can ignore search words that do not appear in the document and focus on the remaining words.

– The annotations (Notes of Decisions) appended to the statute are summaries of case law that have interpreted or applied the statute and discuss the issue in the more foreseeable language of the courts.

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– Here we have done a natural language search in the LA-ST-ANN database for statutes on employer’s liability

– Search: employer “vicariously liable” for assault (“intentional act” “intentional tort”) of employee

– The first statute displayed is Louisiana Civil Code § 2320. – This statute seems to be addressing employers’ vicarious

liability and scope of employment, but it does not include the terms of art you encountered in the print resources.

“Masters and employers are answerablefor the damage occasioned by their

servants and overseers, in the exercise of the functions in which they are employed.”

2320

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CONTROLLING STATUTE

CONTROLLING STATUTE

Click the Best arrow to display the portion of the document that most closely matches your description. In this document, the Best portion of the document is in the annotations where the more foreseeable language of case law is summarized.

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Best

CONTROLLING STATUTE

• The brief wording of the statute does not stand alone but has been interpreted and applied by many courts.

• There are more than one thousand annotations, divided into almost two hundred subtopics appended to §2320 and many of the subtopics seem relevant to your issue.

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CONTROLLING STATUTE

• If there were fewer relevant annotations, it might be possible to confine your research to the full text of the cases summarized in the annotations.

• The number of annotations makes it difficult to synthesize them into general principals law. You will more help.

• In this case, it may be more efficient to search for relevant secondary sources that synthesize and analyze case law in detail.

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CONTROLLING STATUTE • You would have had a more

difficult time if you had attempted to find the controlling statute in the print statutory index.

• Civil Code § 2320 is indexed under LABOR AND EMPLOYMENT, under the subtopic of Responsibility for acts of employees.

• There is nothing listed under Vicarious liability or Scope of employment in the print Index.

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Responsibility for acts of employees

CONTROLLING STATUTE • When using print resources, always

check the pocket part for updates to the statutes and annotations

• Pocket parts are periodically issued supplements that update the text in the bound volume. They are inserted into a pocket in the back cover of the bound volume.

• Here is an annotation relevant to our facts. As with the online resources there are so many annotations, secondary sources may help synthesize the information. 31

49. – Physical attack or killing, generally, course and scope of

employment

• Introduction






• Conclusion

CONTENTS

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• Having found the controlling statute, but being unable to efficiently utilize the large number of annotations, you might turn to a secondary source that will analyze and synthesize your issue. At this point you have two choices: you could use the terms of art and language of the black letter law and: – Go to a print secondary source and use the table of contents

and index to focus your research.– Go online and search for documents containing the terms of

art.

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EXPANDING RESEARCH

EXPANDING RESEARCH – PRINT RESOURCES• American Law Reports (ALR) articles offer detailed

analysis of a narrow issue of law and provide many citations to relevant primary law.

• In the print ALR Index (T-Z) ALR 2d, 3d, 4th, 5th, and Federal, under the listing for VICARIOUS LIABILITY – Assume you looked first for Employer, found Employment,

and were referred to Labor and employment under this section

– The Labor and Employment section has a promising entry:

Intentional wrong, employer’s liability for assault, theft, or similar intentional wrong committed by employee at home or business of customer (13 ALR5th 217)

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• In the print ALR Index (O-S) ALR 2d, 3d, 4th, 5th, Federal

• Under SCOPE OF EMPLOYMENT AND AUTHORITY, you see:– Assault

Employer’s liability for assault, theft, or similar intentional wrong committed by employee at home or business of customer(13 ALR5th 217)

EXPANDING RESEARCH – PRINT RESOURCES

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• Be sure to check in the ALR Indexes’ pocket parts for recent ALR articles.

• Recent articles may be found in the pocket part under Scope of Employment and Authority.

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Scope of Employment and Authority

EXPANDING RESEARCH – PRINT RESOURCES• This is the first page of

the article found in the ALR Index that seems most relevant.

• It is a summary of the issue, with reference to the lead case that initiated the article.

• The full text of the lead case can be found at the end of the volume.

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Smith v. Orkin Exterminating Co., 540 So. 2d 363 (La Ct.App. 1989). Fully reported at 13 ALR 5th 962


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• ALR article finding aids, such as the Table of Contents, Research References, and Index follow the summary of the article.

Index

Assaults

Research References

Table of Contents

• In the Article Outline, the phrase respondeat superior is used under the subtopic of Nonsexual Assaults under Business of Customer. You have not encountered this phrase before.

• Check Black’s Law Dictionary for a definition of respondeat superior.

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Article Outline

The article uses the phrase respondeat superior rather than

vicarious liability.


• Black’s Law Dictionary contains the follow definition of respondeat superior:– “The doctrine holding an

employer or principal liable for the employee’s or agent’s wrongful acts committed within the scope of the employment or agency.”

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• Respondeat superior should now be incorporated as an alternative to vicarious liability in your research. (Reviewing the RESPONDEAT SUPERIOR topic in the ALR Index, you would have found the same article under the subheading, Intentional wrong.)

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• Several of the ALR article’s finding aids have led to the most relevant section of the article:III. Business of Customer

B. Nonsexual Assaults

§13 Respondeat superior(a) Theory established or supportable(b) Theory not established

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• The article includes a Jurisdictional Table of Cited Statutes and Cases.

• McDermott v. American Brewing is the only Louisiana case in the table that deals with nonsexual assault of a customer at the place of the customer’s business.

Under Louisiana, McDermott v. American Brewing Co - § 13 [b] (reference to

the section of the article whereMcDermott is discussed).


• Be sure to check the pocket part of the ALR volume for recent relevant case law.

• Pocket parts inserted into the back cover periodically supplement the materials in the bound volume.

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13 ALR 5th 217


• You could have searched first for the terms of art on Westlaw.com.

• Many researchers use online research to update, supplement, and confirm your print product research.

• Whether you look for the relevant article(s) by using the print ALR index or by searching Westlaw is a matter of choice and economics.

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EXPANDING RESEARCH – ONLINE RESOURCES

• Here we have done a Terms & Connectors search in the ALR database:– ti(employer /10 liab! /10 assault intentional!)

• The relevant ALR article we found in the print index is included in our results.

• When different research methods provide same relevant documents, a researcher can be confident they are on the right track.

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• The online version of the article will have hyperlinks to the cases cited, so a researcher can quickly jump to them

• There are no pocket parts with the online version. New relevant cases will be automatically integrated into the article

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• The online article has many of the same finding aids and research resources as the print article.

• The Document Outline leads you to §13, dealing with nonsexual assaults by employee in the business of a customer.

• The Table of Cases allows quick access to relevant Louisiana case law. However, since there is only one case, we will need to expand our research.

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• The KeyCite Citing Reference feature is an easy and effective way of expanding your online research.

• KeyCite Citing References list cases, statutes, administrative materials, secondary sources and court documents that have cited a case or statute.

• Access KeyCite Citing References by clicking on the Citing References link located in the Links For tab of a case or statute.

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EXPANDING RESEARCH – KEYCITE


• Here we are looking at the Citing References from Smith v Orkin Exterminating Co. 77 documents are listed as citing to Smith.

• Cases that treat Smith negatively will be listed first. Positive cases are divided by how extensively they discuss Smith.

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• KeyCite Citing References are available for statutes also. Here we have Keycited LA Civil Code §2320. There are over 3000 references listed.

• This list can be limited by clicking on the Limit KeyCite Display button.

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• Here you can limit the list of Citing References in a variety of ways. Options are listed on the left hand pane.

• Here the list is limited to cases and then click on Notes of Decision to limit to only the Note # 49.

• Click Apply button after choosing limitations to receive updated list.

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• Introduction






• Conclusion

CONTENTS

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• Section 13 of the ALR article analyzes some of the factors that courts have considered when determining whether an employee acted within the scope of his employment when committing a nonsexual assault at the business of a customer. They include:– Did the act further the employer’s business in any way, even if not

in the manner or method authorized?– Was the act related to employee’s duties and incident to the

performance of the employee’s duties?– Had the business purpose of the interaction between the employee

and customer been completed?– Did the action arise out of a job dispute, or was the assault in

pursuit of private purposes or grievance?– Did the employee’s duties contemplate the use of force?

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IDENTIFYING CASES

IDENTIFYING CASES• You will need to align these factors with the

circumstances that surrounded Ronnie’s assault of the customer.

• You could argue that Acme is not liable because– Ronnie’s job did not contemplate assault.– Ronnie’s job was over when he unloaded the goods on the loading

dock. It was not necessary for him to pursue the argument to complete his delivery.

– Ronnie was pursuing a private grievance.

• But the plaintiff is likely to that Acme is liable because– the assault arose out a job dispute and was not personal.– Ronnie’s job was not over, as he remained on the customer’s loading

dock.– the assault furthered Acme’s business in that its purpose was to

deliver the goods to a customer.55

IDENTIFYING CASES – KEY NUMBERS• You will want to identify relevant cases through sources

other than the ALR article to verify that you are using the most relevant cases and the strongest arguments.

• Key Number Digests are one option of identifying cases with similar issues. The digests organize the law into approximately 400 broad topics divided into approximately 100,000 narrow issues of law, each assigned to a specific key number.

• The McDermott case that is cited in the ALR has only one headnote. That headnote is assigned to 231Hk3056(2).

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IDENTIFYING CASES – PRINT DIGEST• If you were to find Louisiana cases by topic and

key number in the print Louisiana Digest you would need to check the digest’s pocket part for the most recent cases.

• Louisiana cases have the most precedential value, but the reasoning of courts in other jurisdictions may be persuasive. Topic and key numbers remain constant across jurisdictions.

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• You may also go to Westlaw.com and search the Key Numbers finder tool located at the top of the screen:– Type a natural language search into the search box to find

relevant Key Numbers, and choose the appropriate jurisdiction by clicking on the Change Jurisdiction link.

– You may browse through all of the Key Numbers by clicking on the link for Browse Key Number Digest Outline

– You may use pre-crafted searches by clicking on the KeySearch link

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IDENTIFYING CASES

IDENTIFYING CASES• With Search for Key Numbers, after clicking

search, Westlaw.com will suggest a list of Key Numbers relevant to your terms.

• Click on the specific Key Number to retrieve a list of cases with that Key Number from the jurisdiction you have selected.

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IDENTIFYING CASES

On the right of the screen, you will see ResultsPlus. ResultsPlus use your search terms to find relevant secondary source articles from proven sources and Key Numbers that could be used to expand your research.

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ResultsPlus

IDENTIFYING CASES

• You can also begin your Key Number search from a case that you find on point. Here we are looking at the McDermott case we found in the ALR article

• Click on the Key Number or Most Cited Cases link you wish to run a search on for the relevant point of law.

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Assault and Battery Most Cited Cases

• From the case law link, you will be brought to the digest page. Your Key Number selection will be listed.

• The Most Cited Case feature helps determine which cases are most authoritative.

• Select the Jurisdiction and add additional terms or a date restriction and then click the Search button

IDENTIFYING CASES

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Most Cited CasesKey Number: 231Hk3056(2)

Jurisdiction: Louisiana

IDENTIFYING CASES

• There are over fifty headnotes in Louisiana’s Custom Digest for Key Number 231Hk3056(2).

• The first case listed, Scott v. Commercial Union, has been cited most frequently for this point of law.

• McDermott is also near the top of the list.63

52 Headnotes Scott v. Commercial Union: cited 47 times

• The next step is to read the full text of the cases that seem most relevant.

• The critical and often very subtle factors that influence a decision must be isolated and analyzed. This can only be fully accomplished by a thorough reading of the complete text of the cases.

• Some cases might seem to be contradictory, but you should be able to detect a trail of consistency drawn from subtle factual distinctions among the cases.

• You should read opinions that have imposed liability on the employer and opinions that have not imposed liability on the employer.

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IDENTIFYING CASES

IDENTIFYING CASES

• Several of the cases retrieved set forth factors a Louisiana court should consider when deciding whether to hold an employer vicariously liable for the intentional acts of employees:– “ (1) whether the tortious act was primarily employment rooted,– (2) whether the violence was reasonably incidental to the

performance of the employee's duties,– (3) whether the act occurred on the employer's premises, and– (4) whether it occurred during the hours of employment.”

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• Introduction






• Conclusion

CONTENTS

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CURRENCY & VALIDITY • Once you have found the relevant cases and

statutes, you must determine the current status of the law.

• Check the validity of any relevant case or statute before continuing your research.

• A case may be reversed, vacated, remanded or overruled.

• A statute may be repealed, amended, declared unconstitutional, or preempted.

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CURRENCY & VALIDITY – KEYCITE HISTORY• Online citators have distinct advantages over print

citators:– There is a single source of information.

• Checking the validity of a case in print citators involves checking in multiple volumes and updating pamphlets.

– Online citators are extremely current.• Print citators cannot be as current due to the necessity of

printing and mailing updating pamphlets.

• KeyCite is the citation research service available on Westlaw.

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CURRENCY & VALIDITY – KEYCITE HISTORY

• One case in the results of your key number search,Monk v. Veillon, displays a yellow flag in the upper left corner and on the Links for tab in the left frame. – The yellow flag indicates the case has some negative history,

but has not been reversed, overruled, vacated, or remanded.– Click either yellow flag or the Full History link to access the list of

negative history.

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KC History


• The negative history includes cases in which factual distinctions led to a different outcome.

• These would be very valuable cases to read as you try to fit the Acme case into the texture of Louisiana cases.

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• Another case retrieved in your Key Number search, Moore v. Blanchard, is tagged with a red flag.

• The KeyCite Direct History of the case indicates that the judgment was reversed by a higher court.

• When you see a red flag on a case, you should investigate before relying on that case to support your argument.

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Judgment Reversed

• Introduction






• Conclusion

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CONTENTS

CONCLUSION• You have done the research and you feel confident of

your understanding of the issue.

• You have isolated the most relevant articles, cases, statutes, and key numbers that were found by different methods of research and which cross reference one another.

• You have carefully read and analyzed relevant Louisiana law.

• You have ensured the cases you are relying on are good law.

• You can support your position with references to primary law and secondary sources, and counter the arguments likely to be presented by opposing counsel

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• The Loop Rule– When you start to see the same documents and citations

over and over, you should probably realize you are done, especially if you have used the research products of more than one publisher

• The Economic Analysis or Diminishing Return Rule– When you are investing more in your research than you

are getting in return

• The Zen Rule– When you have been working in an area of the law for a

long time, you will be so familiar with the primary and secondary law you will have become an expert and will know when to stop.

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1JOHNSON, ET AL., WINNING RESEARCH SKILLS, West Group, 2002

CONCLUSION – KNOWING WHEN TO STOP1

CONCLUSION• Now you can write a persuasive memo or brief.

• This was just one potential path through the legal research process.

• Every research process will differ. You could have competently explored more or less legal resources depending on what is at stake and the time and money available.

• You’ll be a successful researcher if you understand how to use the many resources that are available in a flexible and efficient manner.

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Good job

Westlaw Research Strategies

Education

Transcript of Westlaw Research Strategies