researching and presenting legal problems a suggested approach

RESEARCHING AND PRESENTING LEGAL PROBLEMS

A Suggested

Approach

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Legal Research-Basics

Many correct ways to research, choose method with which most comfortable

Remember to Be thorough Be efficient Be comfortable

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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

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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)

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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

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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)

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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)

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“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

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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.

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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.

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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

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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)

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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.

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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)

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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.

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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?

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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

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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

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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

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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

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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

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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)

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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.

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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.)

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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

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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

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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;

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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.

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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.

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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.

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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

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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?

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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

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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??

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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)

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Local law (constitutional, statutory-regulatory)

Non-legal sources (any studies, statements from third parties or any other materials employed as part of the memo)

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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.

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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

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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.

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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

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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

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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.

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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…”

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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….

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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

researching and presenting legal problems a suggested approach

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