A Guide to Legal Analysis, Research and Writing: A Systems Approach

by S Layne Russell Esq.

Overview

This legal research and writing text is designed for paralegal/legal assistant studies programs in colleges and universities at both the associate degree and the baccalaureate levels. It is anticipated that users of such text will introduce the matter in the student's first or second semester once the student has entered his/her core courses or requirements. The text features a wide variety of legal research problems and writing assignments, however, it applies basic foundations for each step in learning the subject matter of legal research and writing to assist the student's focus and ability to handle new tasks. For instance, the text assists the student to not only apply existing principles to the solution of questions in legal research, but also to make intelligent decisions when there are no pre-existing principles to govern the exact questions of law that are involved. Given that current students in colleges and universities have little knowledge of the technical writing (technical "language") that law practitioners use, the text will assist students in making a shift in their analysis and thought process (i.e. a paradigm shift) in order to "think and write like a lawyer." Such methodology includes points on how to read opinions of courts, statutes, constitutions, administrative regulations, etc.; how to deal with the frustration of not knowing the "right" answer; how to effectively conclude legal research, that is, knowing when one has enough legal material. The text consists of three major parts: (a) fundamental legal analysis; (b) legal research; and (c) legal writing.

Product Details

ISBN-13:	9780595159970
Publisher:	iUniverse, Incorporated
Publication date:	12/01/2000
Pages:	234
Product dimensions:	6.04(w) x 9.20(h) x 0.57(d)

Table of Contents

	Preface	xi
	Legal Research and Writing Fundamentals	xi
	Overview	xi
	Outstanding Features	xiii
	Competition	xiii
	Content	xiv
	Organization: "What is Law?"	xiv
	"Developing the Issue"-The Concept of Analytical Thinking	xiv
	The Substantive Answer to the Relevant Question	xv
	Legal Research	xv
	When to End Legal Research	xvi
	Legal Writing	xvi
	Ancillary Materials	xvi
	Calr	xvi
	Introduction	xvii
	Q: How Can I, A Non-Lawyer, Ever Begin to Understand the Law?	xvii
	Q: How will I understand the law when the words are confusing and have different meanings?	xviii
Part 1	Legal Analysis	1
I	Understanding "Law"	3
	Q: Where does Law come from? Where's the mystery?	3
	A: From ourselves	3
	Q: Is there a comparison you can provide me?	5
	Q: Should not then our laws remain the same?	6
	A: No, they should constantly develop for the most part	6
	Q: But I don't know enough of "common sense." How can I rely on my own limited understanding?	7
	A: True, law and sense are not always the same	7
	Q: If we all have this "sense" why do we need Law?	8
	Q: Sum it up for me	9
II	Developing the Issue-The Concept of Analytical Thinking	12
	Q: How does one begin to think like an attorney?	12
	A: First Rule: Step away from yourself	12
III	Spotting the Issue and Avoiding Irrelevant Matters	16
	Q: How do I know what is relevant once I have viewed other aspects or issues of my case?	16
	A: Second Rule: Ask yourself	16
	"What are the facts?"	16
	"What are the issues?", and	16
	"What does the wronged party want?"	16
	(What issues are relevant?)	16
	What are the Facts?	17
	What are the Issues?	17
	What Does the Wronged Party Want?	17
	(What Issues are Relevant?)	17
(1)	What are the Facts?	17
(2)	What Are the Issues?	18
	Q: Give me an example	18
(3)	What Does the Wronged Party Want?	19
IV	The Substantive Answer to the Relevant Question	24
	Q: Now I know the important and relevant issues, what are the answers?	24
	A: Third Rule (Part A): Ask yourself, "How may the wronged party get what he wants?"	24
	Q: Now where am I headed?	25
	A: General to Specific	25
	Q: How do I begin to know how the wronged party gets what he wishes?	26
	A: Third Rule (Part B): Categorize the relevant issues	26
	Civil and Criminal matters	27
	Civil	27
	Q: How Does this Categorization Help?	32
V	Review	35
Part 2	Legal Research	37
I	Legal Research--The "Maze"	39
	Q: Why legal research?	39
	Q: Where do I start looking for my answers?	40
	Q: Once I've found the law library, what next?	41
	Q: Now that I've set myself up in the library, what next?	42
	Q: Are there any goals in legal research? Can you give me some simple objectives?	43
	Q: Why are some sources or materials more authoritative than others?	44
	Q: What is a Lawgiver?	44
	Q: What are Secondary Sources?	48
	Q: And Primary Sources?	48
	"Law Types by Function"	49
II	Steps to Take: No. 1	51
Step 1	Using Secondary Sources, learn background information about the area of law that you are studying (the general category)!	51
	Q: What if I can't locate the word I'm looking for? What if I don't see it in the index?	55
	Q: What do I do when I can't understand what I am reading?	57
III	Steps to Take: No. 2	61
Step 2	From your focus on the particular aspects of your fact pattern that set apart your situation from others, and using the Primary Sources of Law, learn the specific information about your area of law	61
	Q: What do these references contain?	61
	Q: But why would all relevant opinions and statutes not come up during my background legal research (First Step)?	62
	Q: How do I research opinions?	63
	Q: What Reporters exist for the Federal Courts?	64
	Q: When is a court required to follow another court's opinion?	65
	Q: When may a court overrule a prior case within its jurisdiction?	66
	Q: What is a "digest"?	67
	Q: How do I research a statute?	68
	Q: When is a court requires to follow an enacted law (such as statute, regulation, ordinance, etc.)?	69
	Q: Once I find the statute, how do I read it?	70
	Q: Where do I find the lawmakers' laws? Are there names for the bound volumes which contain the full text of their laws?	73
IV	Steps to Take: No. 3	76
	Q: How do I know if my supporting case or other law source is still valid?	76
Step 3	Update your Primary Sources of law to make sure that they are the current law. Validate!	76
	Q: How do I actually use Shepard's? How do I shepardize?	78
	Q: How do I conduct research if I have or know of an "authority"?	78
	Q: Help me clarify it all	79
V	Summary	88
	Q: When Do I End Legal Research?	89
Part 3	Writing About Legal Authority	91
I	Writing: Fundamentals	93
II	Writing: A Bold Plan	94
III	Writing: The Case Brief	97
	Facts	97
	Q: How do I know which ones are relevant and which not?	99
	Issue	99
	Q: How Do I Identify an Issue When Reading a Case?	100
	Holding	101
	Rationale	101
	Assignment 3--Complete Appendix D	102
IV	Writing: the Inner-Office Memorandum of Law (A.K.A. the Memo)	103
	Q: What is an Inner-Office Memorandum of Law?	103
	Q: After I have researched it, how do I begin to write the Inner-Office Memo?	105
	Legal Writing is a Technical Writing Skill	106
V	Writing: Over-All Organization Within the Analysis and Counter-Analysis	109
	Assignment 4--Complete Appendix F	109
	Conclusion	111
	Appendix A	113
Appendix B	Bluebook	131
	Appendix C	135
	Appendix D	137
Appendix E	Defenses	177
Appendix F	Writing the Inner-Office Memorandum of Law	179
Appendix G	Analyzing What You Read (Analytical Reading)	205
	Appendix H	209